Supreme Court rules against transgender females in cases involving school athletics
Backed by evangelicals, most states have banned trans females from female sports
In a pair of cases watched closely by conservative Christian activists, the U.S. Supreme Court ruled today that Idaho and West Virginia acted constitutionally by enacting bans on transgender females1 in female sports.
The 6-3 ruling was decided on both constitutional grounds and interpretation of Title IX, a federal law designed in part to expand athletic opportunities for female students.
The two cases were Little v. Hecox, in which two athletes, one of them a transgender woman, is fighting Idaho’s Fairness in Women’s Sports Act, which requires competitors in the state’s public K-12 schools, colleges and universities to be biological females; and West Virginia v. B.P.J., in which a mother and her transgender daughter, Becky Pepper-Jackson, challenged a West Virginia law similar to Idaho’s.
Justice Brett Kavanaugh wrote the majority opinion, supported by Chief Justice John Roberts and Justices Clarence Thomas,Amy Coney Barrett, Samuel Alito and Neil Gorsuch. They form the conservative majority on the court. The three more liberal members — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — dissented.
Idaho and West Virginia are among the 27 states that have enacted laws that maintain women’s and girls’ sports for biological females. Most of those states passed the laws with the strong support of evangelicals, many of whom believe that God created humankind in two genders that are immutable, making full acceptance of transgender persons as belonging to their desired gender a rejection of the divinely created order. Some evangelical groups argued against the athletes’ legal positions in friend-of-the-court briefs, claiming that invalidating such state laws would raise concerns about religious liberty. But those arguments were not addressed in today’s ruling.
In essence, the court found that Title IX, which allows schools receiving federal funds to create separate sports teams for males and females, was written with the intention of referring only to biological males and females — a conclusion in which the minority generally concurred with, although Jackson wrote in her dissent that it was “plausible” that the law could be interpreted in a more “capacious” manner.
On the constitutional issue, the court found that while laws making sexual distinctions are subject to scrutiny, the two states did so reasonably because of the undisputed fact that there are inherent physical differences between males and females that affect their ability to compete athletically. The majority also noted that the science remains unsettled over whether medical treatment such as puberty blockers can eliminate the advantage that biological men have:
The Court’s holding today is straightforward. The Equal Protection Clause allows schools to maintain separate teams for female and male athletes. Schools may determine eligibility for women’s and girls’ teams based on biological sex. That policy is constitutionally justified by the vitally important interests in safety and competitive fairness so as to provide equal opportunities for women and girls to participate in sports. And when a sex-based classification is justified as a constitutional matter, as it is here, States need not make case-by-case exceptions — for example, schools need not make individual exceptions to allow certain biological males to compete in women’s and girls’ sports.
Second, we do not accept the dissent’s assumed monopoly on understanding the effects on individuals involved in disputes over transgender athletes. We are acutely aware of the difficulties sometimes faced by boys who identify as girls (and by girls who identify as boys) in middle school, high school, and beyond. And we greatly admire the desire of all students, of all students, including transgender students such as B.P.J., who want to participate in sports.
The court minority would not have handed a win to the transgender athletes outright, but would have sent the case back to lower courts to consider whether the athletes had an unfair advantage in fact. Rather than making the decision with scientific matters unsettled, the court should have sent the cases make to lower courts to consider them, Sotomayor wrote for the minority:
This litigation implicates deeply sensitive, contentious, and evolving issues. These circumstances demand exercising judicial restraint, not rushing to answer conclusively difficult questions without sufficient evidentiary development. In opting otherwise, the majority extends great sympathy to those it favors: the young cisgender girls and women who play sports. I share that sympathy. Playing sports can lead to benefits that are immeasurable, and many are understandably invested in ensuring that competition stays fair and safe. Because the majority, however, inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions, I respectfully dissent.
Although today’s ruling settles the constitutional and statutory questions of whether female sports in public schools can be restricted to biological females, it leaves unresolved some other key issues, such as how biological sex should be determined.
In this article, the term “transgender female” (or girl or woman) is used to refer to refer to a person who was determined to be a biological male at birth but now identifies as female.