A divided U.S. Supreme Court has upheld state laws that ban transgender girls and women from competing for their schools on girls’ teams, siding with conservatives and President Donald Trump on a divisive culture war issue.
The court on Tuesday rejected arguments that these measures violate the Constitution and a federal civil rights law by discriminating against trans athletes. The three liberal ministers differed on central points of the decision.
The Constitution and Title IX, the law that prohibits discrimination on the basis of sex in educational programs, “do not require an overhaul of women’s sports across America,” Justice Brett Kavanaugh wrote for the majority. According to him, the law “cannot plausibly be interpreted as referring to anything other than biological sex” and “not gender identity.”
The states, along with major U.S. and international sports institutions, concluded that women and girls should be able to compete for “life-changing opportunities on an equal basis, without fear of physical harm from biological males or being forced to compete against biological males,” Kavanaugh wrote, while advocating respect for all students who want to participate in sports.
In her dissent, Justice Sonia Sotomayor wrote that the majority is empowering states to deny athletic opportunities to trans students “simply because it thinks they have an inherent athletic advantage, even when the facts show that they do not.” She added: “Sports, of course, are often a zero-sum game, but the law need not and should not be.”
Idaho and West Virginia are among 27 states with laws restricting high school-age trans athletes, according to the Movement Advancement Project, a nonprofit think tank that advocates for greater understanding of the LGBTQ community. All of these laws have been passed since 2020. Two other states impose restrictions through regulations or policies.
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Limitation of rights
The decision adds to a series of recent defeats, in the conservative-majority court, for trans people and for LGBTQ rights more broadly. The Supreme Court has already upheld state laws that prohibit certain medical treatments for trans youth, stated that parents of public school students have the right to withdraw their children from classes with themes favorable to the LGBTQ community and allowed Trump to expel trans people from the Armed Forces.
The ruling does not affect states that allow trans girls and women to participate on women’s teams. The Trump administration is suing some states over these policies, but this issue was not before the Supreme Court. The government asked the court to uphold the Idaho and West Virginia laws.
Joshua Block, senior attorney for the American Civil Liberties Union (ACLU) LGBTQ & HIV Rights Project who represented the student athletes, called the decision “a devastating judgment for our clients and for trans girls like them, who asked for nothing more than the same opportunities afforded their peers.”
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In a statement, Block stated that “the reality is that equality for trans women and girls does not take anything away from women and girls in general and, in fact, promotes equality for all of them. We will continue to defend the fundamental principle that all young people deserve equal opportunity to thrive and succeed.”
The Supreme Court reviewed appeals from Idaho and West Virginia after federal appeals courts blocked the states in separate cases from fully enforcing their bans.
‘Monumental victory’
The 2021 West Virginia law restricts women’s teams to people classified at birth as female based on their “reproductive biology and genetics.”
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West Virginia Attorney General JB McCuskey, a Republican, said in a statement that the decision “is a monumental victory for every female athlete who has ever competed, or dreamed of competing, on a fair and safe playing field.”
The Justice Department, which supported the states, released a statement saying it was “pleased that the Supreme Court agreed with our common-sense position that nothing in federal law prevents states from prohibiting men from participating on women’s sports teams.”
The state was facing a lawsuit filed by 16-year-old Becky Pepper-Jackson, who has competed on her school track and field teams since elementary school, after a judge blocked the measure from being taken against her. This year, as a high school sophomore, she placed first in the shot put and fourth in the discus at the state championships.
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The 4th U.S. Circuit Court of Appeals ruled that West Virginia’s measure could not be applied to Becky without running afoul of U.S. law prohibiting gender discrimination in schools that receive federal funding.
Idaho
Idaho’s law, passed in 2020, was the first of its kind. In addition to banning trans women and girls from participating in all-female teams since elementary school, the measure allows female athletes to question a competitor’s sex and requires that person to undergo a medical examination.
The 9th U.S. Circuit Court of Appeals ruled that the law could not be applied against Lindsay Hecox, a trans college student who at the time participated in club-level track and soccer at Boise State University.
Hecox told the Supreme Court that he wanted to drop the case and that he no longer participated in sports at Boise State as he neared graduation.
It’s unclear how many trans athletes compete in organized sports. Proponents of the bans say there is a growing list of trans girls and women outperforming cisgender competitors. Defenders of trans rights claim that this number represents a tiny fraction of the total number of athletes.
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