Supreme Court Lets Red States Force Trans Girls to Play on Boys’ Teams

The Supreme Court on Tuesday ruled that neither Title IX nor the Equal Protection Clause forbids schools from keeping trans girls off of girls’ sports teams, an inflection point in a years-long campaign by the right, particularly the Trump administration. 

Justice Brett Kavanaugh wrote the majority opinion in two related cases, West Virginia v. BPJ and Little v. Hecox. He was joined by the other five right-wing justices. Justices Clarence Thomas and Neil Gorsuch also wrote concurring opinions. Justice Sonia Sotomayor wrote an opinion concurring in part and dissenting in part, in which Justices Elena Kagan and Ketanji Brown Jackson joined. Jackson also filed her own opinion concurring in part and dissenting in part. 

Much of Kavanaugh’s opinion is resistant to the growing visibility and modern understanding of trans children, in no small part informed by the virulent anti-trans hate campaign that has become a primary plank of the Republican Party platform.

“The ordinary meaning of the term ‘sex’ at the time of enactment in the early 1970s was biological sex and not gender identity, particularly in the sports context,” he wrote. 

One sticky point of contention arose in the case of B.P.J., who said she never went through male puberty before transitioning. Since much of the anti-trans girls in sports argument rests on “safety” risks to cisgender girls competing against trans ones, the question of whether girls like B.P.J. actually have any physical advantages is significant. Kavanaugh, though, wrote that it would be too onerous for schools to make case-by-case determinations. 

“That premise is the subject of ongoing medical and scientific debate,” he wrote of trans girls’ physical advantages, adding that even if the competitive edge is proven negligible, separating based on biological sex is still constitutional. 

In her partial concurrence, partial dissent, Sotomayor — joined by the other liberals — disagreed strongly with that conclusion from Kavanaugh, even while she agreed that the Title IX claim fails. 

She traced the history of Equal Protection cases where a “subclass” proved that it is exempted from an otherwise legitimate law. Here, Sotomayor wrote that the case should be sent back down to the lower courts to investigate whether girls like B.P.J. who also transitioned before puberty actually have a physical advantage over cis girls. If they do not, as B.P.J. claims, they would constitute a subclass exempt from West Virginia’s biological separation law. Kavanaugh’s insistence that it does not change the legal calculus whether or not B.P.J. has a physical advantage, she wrote, is wrong. 

“B. P. J. contends that even if the use of the sex classification substantially furthers the State’s interests when it prevents cisgender boys from playing on girls’ teams, it does not substantially further the State’s interests when it prevents transgender girls who have never experienced an endogenous puberty and who receive gender-affirming treatment from doing the same,” she wrote. 

Sotomayor added that Kavanaugh’s dismissiveness of the overbreadth concern due to the small number of girls like B.P.J. is inconsistent. 

“It credits the West Virginia Legislature’s concern that a class consisting of transgender girls like B. P. J. is large enough to pose an existential threat to girls’ sports, but at the same time holds that this class is too small to be protected by the Equal Protection Clause,” she wrote. 

Of the right-wing cohort, Gorsuch has attracted attention in gender identity-related cases ever since his majority ruling in Bostock v. Clayton County, in which he and Chief Justice John Roberts joined the liberals to rule that firing someone because of their homosexuality or transgenderism violates Title VII.

Gorsuch devoted his Tuesday concurrence to explaining why this case is unlike Bostock.  

“The difference between this case and Bostock is that we face here a question that wasn’t present there,” he wrote. “In Bostock, again, no one doubted that firing someone because of his biological sex qualified as ‘discrimination’ under Title VII.” 

“Here, though, we face the question whether it qualifies as discrimination under Title IX for a federal funding recipient to sponsor sports teams restricted to biological women or girls alone,” he continued. “And for the reasons just laid out above and explored in depth by the Court, it does not. Title IX anticipates and approves single-sex living accommodations and sports teams in school settings; it does not treat them as unlawful discrimination.”

Thomas, with the casual cruelty that has become standard for Republicans discussing trans issues, likened trans identity to a mental illness that does not deserve heightened protections because it is the “object of psychiatric treatment.”

“A man does not have a legal right to compete against women just because he believes that he is a woman,” he wrote. 

Read the ruling here: