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The Supreme Court ruled on Tuesday that states may bar transgender athletes from girls’ sports, in a continuation of the Trump administration’s attacks on trans rights. The conservative judges’ written opinions were replete with transphobia — and even the dissenting, liberal position from the court failed to fundamentally uphold the rights of transgender athletes.
The court ruled that laws in West Virginia and Idaho barring transgender athletes from participating in women’s sports do not violate the Constitution’s equal protection clause or Title IX, which prohibits sex-based discrimination in schools. “Schools may determine eligibility for women’s and girls’ sports based on biological sex,” the .
The West Virginia case rested on a lawsuit by Becky Pepper-Jackson, who was 11 years old when she challenged West Virginia’s “Save Women’s Sports Act” in 2021 to be able to continue to play and compete in sports. B.P.J. is a trans athlete who began to transition at 10 years old.
Justice Brett Kavanaugh, who coaches girls’ basketball despite the fact that he’s been accused by multiple women of sexual assault, delivered the majority opinion. He ruled that states may prohibit transgender women and girls from competing on female sports teams and that such bans do not violate Title IX or the Equal Protection Clause. His majority opinion repeatedly states that “sex” as referred to in Title IX can only mean “biological sex” and refers to the supposed “inherent physical differences” between “biological men” and women.
Kavanaugh’s opinion describes transgender women and girls as “biological males” and “boys who identify as girls.” Justices John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett signed on to his majority opinion.
Clarence Thomas issued a concurring opinion replete with derogatory, anti-trans language. Thomas’s opinion states that gender dysphoria “is a mutable mental state that is the object of psychiatric treatment,” and “does not resemble the immutable characteristics” of race, sex, or national origin. Beyond the blatant cruelty of the statement, the suggestion that race, sex, and national origin are “immutable” flies in the face of years of analysis revealing each to be socially constructed.
Thomas also calls transgender women and girls “men who believe they are women” and calls sex “immutable” and “binary.”
According to Scientific American, the idea that sex is binary “is bad science.” Biologists have argued that a “reliance on strict binary categories of sex fails to accurately capture the diverse and nuanced nature of sex.” And these ideas about supposedly “immutable” categories “are being deployed to restrict women’s bodily autonomy, target LGBTQIA+ individuals” and attack the rights of transgender people.
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Justice Sonia Sotomayor issued a partial dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor agreed with Kavanaugh’s majority opinion that state bans on transgender athletes do not violate Title IX, and that Title IX does not require an exception for gender identity.
“States do have some room to legislate around issues when there exists significant, and genuine, scientific debate,” she wrote – in effect, letting states off the hook for decisions that curb the rights of trans athletes.
Sotomayor’s dissension was solely based on the equal protections claim. She stated that “unresolved factual questions prevent the Court from assessing the merits” of the equal protections claim for trans athletes. Sotomayor’s disagreement focused on the fact that the majority decision upheld a blanket ban without an examination of the full facts “about the state of the scientific debate” on transgender athletes.
“Today’s sweeping ruling is a huge overstep of this court’s power to push ideology over honoring basic civil rights,” said Shelby Chestnut, executive director of the Transgender Law Center.
Mariah Moore, director of policy and programs at the Transgender Law Center, also said that the courts cannot be relied on to support transgender rights. “Time and again, our civil rights have been fought for and won when we show up together and make our demands crystal clear. No matter who is in power, we will continue banding together to create a future where every person can live freely as themselves.”
This ruling follows last year’s Supreme Court verdict that upheld state laws prohibiting gender-affirming care for transgender minors, and paving the way for dozens of states to criminalize and ban gender-affirming care for trans minors.
Trump has ramped up his attacks on transgender rights in his second term in office, making the erosion of such rights central to his administration’s right-wing agenda. On the first day of his second term, Trump signed an executive order stating that the U.S. will only recognize “two sexes, male and female,” dismissing gender identity.
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