The U.S. Supreme Court on June 30 upheld state laws that ban transgender athletes from school sports teams that correspond with their gender identity.
The justices in January heard oral arguments in two cases — Little v. Hecox and West Virginia v. B.P.J. — that challenged laws in Idaho and West Virginia respectively.
Both cases question the constitutionality of laws from both states that block transgender girls from participating on girls’ teams at publicly funded schools— specifically if these bans violate the 14th Amendment’s Equal Protection Clause and Title IX. Since 2020, 27 states have banned transgender youth from playing school sports.
In a 6-3 decision made on party lines, the conservative justices asserted that laws prohibiting transgender women and girls from participating in sports programs at publicly funded schools does not violate either constitutionally protected right. Notably the ruling does not require any state to categorically bar transgender girls from participating on girls’ sports teams, or transgender boys from participating on boys’ sports teams.
In the majority for the case, Justice Kavanaugh delivered the opinion. It holds that schools can determine eligibility for women’s and girls’ sports teams based on biological sex. It also holds that West Virginia did not violate Title IX, which bars educational programs that receive federal funding from discriminating based on sex.
The Chief Justice Roberts, along with Thomas, Alito, Gorsuch, and Barrett joined Kavanaugh’s majority opinion. It permissibly maintains female sports for biological females.
In his conclusion, Kavanaugh shares his belief of the importance of sports to women and girls but also a caution that “[n]o student-athlete on either side of the issue … deserves to be ostracized or vilified.”
Justice Sotomayor opinion was concurring in the judgment in part and dissenting in part. Justices Elena Kagan, and Ketanji Brown Jackson joined Sotomayor’s opinion.
In her dissent, Sotomayor explains that the majority opinion, while attempting to protect one groups Constitutional rights (those assigned women at birth), it puts another group’s constitutional rights (transgender women) at its expense and in principle violates the Equal Protection Clause of the 14th Amendment.
“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,” Sotomayor wrote, eventually pointing to how the states had evealuated issues of transgender sports participants prior to these bans as evidence of general omission. “The ban eliminated this individualized approach in favor of categorical exclusion.”
She also pointed out that these rules to not equally exclude, further bolstering her argument that the majority opinion was not created with the truest sense of the Equal Protection Clause at its center.
“Teams “designated” for “females” “shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” Teams “designated” for “males” do not have the same restriction.”
Justice Jackson wrote in her dissent that this ban does explicitly allow for sex discrimination in any school or education program that receives federal funding.
“A transgender woman penalized for being perceived as aggressive has experienced discrimination ‘on the basis of sex’ just as much as a cisgender woman has, no matter that the transgender woman’s behavior matches expectations of her sex assigned at birth,” Jackson said. “Either way, the institution has imposed its gender-based expectations upon her. And either way, the institution may have violated Title IX.”
In West Virginia v. B.P.J., the case centers on B.P.J., a transgender girl who was barred from competing on her school’s girls’ cross-country and track teams under West Virginia’s Save Women’s Sports Act, enacted in 2021. Under the law, it requires participation to be based on the athlete’s biological sex as indicated on their original birth certificate issued at the time of birth.
In Little v. Hecox, the are details are slightly different, but ask the same 14th Amendment and Title IX questions but against Idaho’s Fairness in Women’s Sports Act. In this case Hecox, a transgender woman and student at Boise State University wished to join the women’s cross-country team, but couldn’t under the law. She, with a cisgender athlete filed a suit against the governor, arguing the Equal Protection Clause of the 14th Amendment explicitly protects their rights to participate on the woman’s team.
Transgender rights activists have criticized the highest court in the land’s decision, highlighting it legally allows for discrimination based on gender identity— something they argue is a foundational element of the spirit of the Equal Protection Clause.
Jennifer Levi, Senior Director of Transgender and Queer Rights at GLBTQ Legal Advocates & Defenders at GLAD Law outright called the 6 conservative justices view of Equal Protection and Title IX as “wrong.”
“Today’s ruling gets it wrong. And it’s kids who will suffer for it. By upholding these blanket bans, the Supreme Court has allowed states to deny students even the chance to try out for a school team, simply because they are transgender,” Levi told the Blade in a statement. “Policies that categorically bar students don’t advance fairness; they mandate exclusion.”
She continued, pointing out excluding some for the protection of others does not ensure fairness as the justices are arguing in their opinion.
“When a law bars every transgender girl regardless of age, hormones, or physiology, it isn’t about competitive fairness. It’s about keeping transgender kids out. We can protect women’s sports without doing that. Most of the country already does.”
Chris Erchull, Senior Staff Attorney at GLBTQ Legal Advocates & Defenders (also with GLAD Law) pointed out that while disappointing, the court does not mandate discrimination as the policy.
“This ruling does not require any state to follow West Virginia’s or Idaho’s cruel, overly-broad approach, and it does not mandate categorical bans on transgender students participating in school sports,” Erchull said. “It also leaves intact broader nondiscrimination protections for transgender students in education, including Title IX’s protections against sex discrimination for LGBTQ+ students. Discrimination has no place in our schools, and we can and should ensure that every student has the opportunity to learn, to thrive, and to know that they belong.”
Sasha Buchert, Senior Attorney and Director of the Non-Binary and Transgender Rights Project at Lambda Legal also emphasized the bad faith argument the majority opinion pushes for the sake of one exclusionary view of the Equal Protection Clause and Title IX.
“This ruling is deeply harmful for transgender women and girls who only asked for the ability to participate in sports with their peers,” Buchert said. “Countless studies have demonstrated the myriad benefits that come with participation in team sports. Now, one population, transgender youth and collegians, are targeted for specific and baseless discrimination. We will not be deterred and will continue to fight back to secure the equal participation that all youth, including transgender youth, deserve.”
Joshua Block, Senior Counsel for the ACLU’s LGBTQ & HIV Rights Project also echoed the lasting negative impact this ruling will have for transgender americans.
“This is a heartbreaking ruling for our clients and transgender girls like them who’ve asked for nothing more than the same opportunities afforded to their peers.” Block said. “The reality is that the equality of transgender women and girls takes nothing away from, and in fact promotes, the equality of all women and girls. We will continue to advance the fundamental principle that all young people deserve equal opportunity to thrive and succeed.”
“It is profoundly unfair to deny a young person the benefits of teamwork and dedication because of who they are,” said Kelly O’Neill, Legal Voice’s Idaho attorney. “We should be removing barriers for girls and women in sports, not creating new ones.”
Human Rights Campaign President Kelley Robinson came to a similar conclusion.
“No kid – not my kid, not your kid, not any kid – deserves to be discriminated against. Yet this ruling is heartbreaking for transgender student athletes who are being forced to sit on the sidelines simply for who they are. When politicians convince the public that any girl could be ‘the wrong kind of girl,’ they invite harassment, intimidation, invasive questioning, or even an inspection of their body by a total stranger,” Robinson wrote in a statement shared with the Blade. “It’s sadly just the latest decision by the conservative justices on the Supreme Court to roll back protections for marginalized communities and create a second class citizenship for millions of people. We are sacrificing the dignity, privacy, and safety of America’s young people to solve a problem that was manufactured and exploited for political gain…We must continue this fight with full force until freedom, justice and equal opportunity are not flimsy promises, but nationwide guarantees.”
On the other side of the ideological isle, Idaho Senator Jim Risch applauded the Supreme Court’s decision to uphold the state’s women and girl transgender sport ban. In a statement the Republican called the court’s conservative view of as a win for “women, fairness, and the Gem State.”
“Idaho was the first state in the nation to ban biological men from competing in women’s sports and uphold the opportunities Title IX promised more than 50 years ago,” Risch said in a statement. “The Supreme Court’s decision affirms those protections and the generations of women who fought for fair, equal athletics.”
The Washington Blade will update this story.
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