WASHINGTON — The Supreme Court ruled Tuesday that states can bar transgender female competitors from playing girls’ sports in a landmark decision with major implications for more than half the country, where such policies are in place.
In a 6-3 opinion, the high court determined that neither Idaho nor West Virginia had violated the Equal Protection Clause of the Fourteenth Amendment with their bans, as well as that Title IX allowed states to separate sports teams on the basis of biological sex.
But the majority opinion by conservative Justice Brett Kavanaugh also underscored the importance of treating transgender athletes with respect.
“Most of the biological female and transgender student-athletes who are involved in transgender sports disputes around the country are teenagers or in their early twenties,” Kavanaugh wrote.
“Those student athletes want to play sports. Their desire to compete warrants respect. No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified.”
Some 27 states have implemented laws similar to those in Idaho and West Virginia barring biological males from competing in women’s sports for public schools and colleges. The Supreme Court opinion does not automatically reverse policies in states such as California and Connecticut which permit transgender athletes to compete in sports. Rather, the court’s decision allows individual states to make decisions on their athletes, setting up a patchwork system of rules much like access to abortion.
Kavanaugh, who spent years coaching his daughters’ basketball teams in suburban Maryland, stressed that the court is deferring policy questions to the states and the democratic process.
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“Sports are highly competitive and generally zero sum,” he wrote for the majority. “Women and girls who play sports care deeply about all of those things. They obsess about them. They spend extraordinary time and effort to train in the heat and in the cold.”
Two transgender athletes waged similar challenges to the state bans, arguing that the statutes flouted their rights and the law barring programs that engage in sex-based discrimination from receiving federal funds.
The three liberal justices would have allowed the states to proceed with their bans under a much narrower legal rationale that would have left the laws more susceptible to future challenges.
“West Virginia may well have satisfied its burden and seen its ban upheld. The point, rather, is that this Court’s equal protection precedents require a very different approach … than the one the majority follows today,” Justice Sonia Sotomayor wrote in her dissent.
The liberals contended that the high court should have just stuck with West Virginia plaintiff Becky Pepper-Jackson’s concession that “sex” under the Title IX statute means “biological sex” assigned at birth, and not decided the constitutional question.
“I agree that B. P. J’s Title IX claim fails, although on a narrower basis than that on which the majority relies. As for B. P. J.’s equal protection claim, however, the majority, at this stage of the litigation, gets the answer wrong,” Sotomayor added.
In Idaho, aspiring Boise State University track and cross-country athlete Lindsay Hecox challenged the state’s Fairness in Women’s Sports Act citing the 14th Amendment, ratified after the Civil War and meant to extend equal rights to former slaves.
In West Virginia, Pepper-Jackson’s mother fought against the state’s Save Women’s Sports Act after her child underwent gender reassignment surgery during the third grade, prior to going through male puberty.
President Trump used Title IX as the basis for his executive order last year targeting states that allow transgender women to compete in women’s sports.
Notably, in his concurrence, Republican-appointed Justice Clarence Thomas went further than the majority and declared that “Men and boys with gender dysphoria are not women or girls, even if they believe that they are.”
“Sex is an immutable ‘biological’ characteristic … it is binary; and ‘man’ and ‘woman,’ ‘boy’ and ‘girl,’ are the terms that correspond to adults and children of each sex,” he added.
The majority opinion steered clear of making sweeping pronouncements on transgenderism.
The decision in the cases Little v. Hecox and West Virginia v. B. P. J. marks the first time the Supreme Court has dealt with the fraught culture war issue of transgender competition in girls’ sports.
Last year, the Supreme Court allowed states to ban or restrict transgender surgeries or hormonal treatments for minors.
Trump cheered the decision Tuesday as a “big win.”
“The United States Supreme Court just RULED AGAINST MEN PLAYING IN WOMEN’S SPORTS. Wow! That takes that ridiculous situation off the table!!!” he posted on Truth Social.
However, Kavanaugh’s opinion doesn’t bar transgender females from competing in biological sports completely —but refers the question to individual states.
