The Supreme Court’s trans athlete ruling is a threat to gender equality

In a widely anticipated defeat for transgender rights, the Supreme Court upheld state laws in Idaho and West Virginia that ban transgender girls from playing on girls’ school sports team. The decision, issued Tuesday, does not impose a nationwide ban on trans athletes. But it does preserve laws passed in 27 states by GOP politicians and anti-trans activists who argued that transgender women threaten safety and fairness in women’s athletics.

All nine Supreme Court justices agreed that Title IX, the federal law forbidding sex discrimination in schools, allows states to ban trans girls from girls’ sports. They also ruled 6–3, along ideological lines, that such bans do not violate the equal protection clause of the Constitution.

The science is far from settled about whether trans girls who have received gender-affirming treatment actually have a competitive advantage or pose a greater risk of injuring other players. But the majority opinion, by Justice Brett Kavanaugh, glosses over those unknowns—reasoning that “biological sex” is a good enough proxy for athletic ability for states to categorically ban trans girls from girls’ sports.

“Separate sports teams for biological males and biological females are reasonable,” Kavanaugh writes. “Given the inherent physical differences between the sexes, allowing only biological females to play on women’s and girls’ teams can reduce the risk of physical injury and ensure fair competition.”

Yet the ruling has much broader implications. In her dissent, Justice Sonia Sotomayor points out that the majority opinion is allowing states to make laws based on broad differences between boys and girls, without looking closer at the subcategories of people who may not fit into those generalizations. “In so concluding,” she writes, “the Court…lowers the State’s burden for justifying the use of sex classifications in potentially all cases.”

In other words, the decision makes it easier for states to justify treating men and women differently. In the past, Sotomayor argues, the court has overturned laws that used “overbroad generalizations” that suited most men and most women but failed to make exceptions for a minority who did not conform to sex stereotypes. But this case breaks that long-standing pattern: The court on Tuesday failed to account for the minority of students who have received gender-affirming treatment and thus may not conform to sex stereotypes about their athletic performance.

As a result, the ruling could threaten decades of progress on gender equality, Sotomayor warns. “The majority applies its diminished view of equal protection to the sports context today,” she writes. “One can only hope that the same misguided approach does not and will not extend to other contexts tomorrow.”

The legal cases, known as Little v. Hecox and West Virginia v. B.P.J., began in 2020 and 2021, when trans students’ participation in sports had not yet become a culture-war flashpoint or presidential campaign–defining issue. Back then, conservative political strategists had just begun to invest in messaging on trans athletes, and Republican legislators began to introduce bills banning them—even though many couldn’t identify a single trans athlete playing school sports in their state.

The issue of trans athletes in sports proved persuasive. Soon, Republican legislators were introducing and passing an array of anti-trans laws, targeting LGBTQ-inclusive school curricula and medical gender transitions for minors and even successfully passing the kinds of bathroom bans that had failed in the past. “There was a concerted effort to use this issue as the wedge for establishing, both in law and in public opinion, that transgender women are not women and that they should be treated differently from cisgender women,” Joshua Block, the American Civil Liberties Union lawyer who argued one of the cases before the Supreme Court, said in an interview last year. “They go right from ‘transgender women don’t belong on our sports teams’ to ‘and they don’t belong in our restrooms or in our social clubs.’ It’s been a very potent political weapon for them.”

When Idaho and West Virginia passed their sports bans, trans students in each state sued, arguing that the laws were discriminatory and unjustified—not just because there are so few trans athletes, but also because the science remains unsettled about whether athletes who medically transition from male to female retain any physical advantage. The plaintiff in the West Virginia case, Becky Pepper-Jackson, has identified as a girl at school since the third grade, and, thanks to puberty blockers, never went through a male puberty; still, she was banned from trying out for her middle school’s girls’ cross-country team. Meanwhile, in Idaho, Boise State University student Lindsay Hecox was also barred from running women’s cross-country, even though she had medically transitioned and suppressed her testosterone for a year, as NCAA rules at the time required. In response to their challenges, federal appeals courts blocked the bans in both states. Then the Republican-led state governments asked the Supreme Court to take up the issue.

On Tuesday, the Supreme Court overruled those appeals courts’ decisions. “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 a statement following the ruling. “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.”

The court’s decision is limited in some important ways.

For one thing, it doesn’t require all states to ban trans girls and women from women’s sports. “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,” Chris Erchull, senior staff attorney at the nonprofit GLBTQ Legal Advocates & Defenders, said in a statement following the ruling.

On top of that, the Title IX ruling is specific to sports—citing an amendment made to Title IX in 1974 that allowed schools to separate athletic teams by sex—and does not say whether Title IX allows or forbids discrimination against trans students in other contexts. That means trans students can continue to use Title IX to fight back when schools impose policies that harm them—such as rules that restrict their bathroom use, forbid teachers from using their preferred pronouns, or forcibly out them to unsupportive parents or guardians.

And while the justices decided that trans sports bans are allowed under the equal protection clause of the Constitution, they didn’t rule on a broader question: whether judges, when analyzing other anti-trans laws, should apply the same rigorous legal analysis they use for laws that treat men and women differently. That bigger, still-unresolved question has enormous consequences for transgender rights. If that answer is yes, courts must examine whether anti-trans laws are “substantially related” to an “important government” objective. That standard, known as “intermediate scrutiny,” is tough, and it makes it more likely that anti-trans laws of all kinds will be overturned.

In Tuesday’s ruling, Kavanaugh said trans sports bans must be analyzed under intermediate scrutiny because they treat people differently based on “biological sex.” But the court still hasn’t decided whether other laws that treat people differently based on transgender status qualify for the more rigorous legal analysis.

Still, Tuesday’s ruling could have much wider consequences for gender equality under the Constitution—affecting not just trans people, but cisgender men and women.

As I reported in depth earlier this year, feminist legal scholars have been sounding alarms about the conservative legal movement’s strategic use of anti-trans laws to chip away at the equal protection clause’s protections against sex discrimination. The term “biological sex” has become “the new takedown strategy for anti-discrimination law,” legal historian Mary Ziegler of the University of California, Davis, explained:

“What they’re trying to do is to replace sex discrimination law with a Trojan horse sex discrimination law that no longer prohibits sex discrimination,” Ziegler says. Rather than attacking protections head on, she explains, “they’re going to say, ‘American anti-discrimination law means you can treat men and women differently because they have different bodies.’” If courts embrace this logic, Ziegler says, it would be much harder to fight back against potential restrictions on women’s lives—laws that limit job options for pregnant workers, for example, or that ban women from military schools—by arguing they violate the Constitution’s equal protection clause.

Sotomayor points out a similar threat in her dissenting opinion. Under the court’s previous precedents, Sotomayor explains, states are not allowed to treat people of different sexes differently based on generalizations about “the way women are.” Instead, they have to account for the subset of women who might not fit into sex stereotypes. In a famous case, the court ruled that the Virginia Military Institute couldn’t categorically exclude women by reasoning that most women wouldn’t do well under its adversarial style, since at least a small subset of women would, in fact, succeed there. 

In the case of the trans girls who have received gender-affirming care, Sotomayor argues that it’s too soon to say whether they fit into generalizations about the athletic abilities of “biological” boys. “West Virginia might be right that transgender girls retain some inherent athletic advantage over cisgender girls due to their sex identified at birth even after receiving the hormonal therapy B. P. J. identifies,” she writes. “At this point, however, neither the District Court nor the Fourth Circuit has passed upon any of the available evidence or made the necessary factual findings about the state of the scientific debate.”

In other words, trans girls who have received gender-affirming treatment may not, in fact, threaten safety or competitive fairness in girls’ sports. The court simply doesn’t have enough evidence to tell, Sotomayor argues. Instead, she says, Idaho and West Virginia’s laws “[rest] on exactly the kind of overbroad generalizations based on sex the Equal Protection Clause is supposed to root out.”

“Even if most trans athletes would have strength advantages or potentially raise safety concerns, not all of them would, and that’s what intermediate scrutiny requires you to look at,” Ziegler explains. [Sotomayor] “thinks that the court is watering down that part of equal protection.”

That’s important, explains Albany Law School professor Ava Ayers, because Kavanaugh’s opinion on Tuesday could make it easier for courts to uphold other laws that generalize about all men and women based on sex. “What really concerns me about this decision is that he’s not only creating a bad precedent for trans people, he’s significantly lowering the protection all women get under equal protection,” Ayers says.

In the immediate term, the people who will have to live with the Supreme Court’s decision are mainly teenage girls. Disturbingly, Idaho’s law allows a “dispute” about a student’s sex to be resolved by a “physical examination” of their “reproductive anatomy.”

Many of the transgender girls seeking to play on a girls’ team simply want to play sports with their friends. “Where are they supposed to go?” says Ayers, who clerked for Sotomayor before she was appointed to the Supreme Court. “It’s not safe for a trans girl to play on a boy’s team, or at least she’s very justified in feeling that way.”

And there are the harder-to-quantify consequences for teenagers encountering rigid gender policies at school—whether or not they’re trans. “I didn’t realize I was trans until I was about 40, but I was deeply confused and perplexed by gender when I was a kid, and sports is a fraught experience,” Ayers says. “I think there are lots of kids who may not grow up to identify as trans but who benefit immensely from a space in which they can think about their gender with a measure of freedom that these laws deny to people.”