States can bar transgender women from competing in women’s sports leagues, the Supreme Court ruled Tuesday, as the justices continued to shy away from making major constitutional pronouncements about transgender rights.
Ruling 6-3, the high court upheld laws in Idaho and West Virginia that bar transgender athletes from competing in girls’ school sports. The ruling will likely also protect similar laws in 25 other states.
Justice Brett M. Kavanaugh, who coached his daughters’ basketball teams for years, wrote the key opinion, celebrating the advancement of women’s sports in recent decades and acknowledging conservative states’ fears that transgender athletes could upend that progress.
“States may maintain women’s and girls’ sports for biological females. They may determine eligibility for women’s and girls’ sports based on biological sex. The Constitution and Title IX do not require an overhaul of women’s and girls’ sports throughout America,” he wrote, joined by all the court’s other Republican appointees.
The ruling, while allowing states to have restrictive policies, does not affect the other states that have permissive policies toward transgender athletes.
The high court likely will have to grapple with that eventually. Cases challenging those states are already percolating in lower courts.
The court’s three Democratic appointees dissented. They said it was premature to find that state laws barring transgender women complied with the Constitution and civil rights law, and the cases should have been given more time to develop in lower courts.
“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,” wrote Justice Sonia Sotomayor, who authored the key dissent.
She said she, like the majority, has sympathy for “cisgender girls and women who play sports,” but she said the court majority “inflicts a hardship” on transgender athletes.
The case is a major win for conservatives who have argued that the push for transgender rights has far outstripped science, social mores and common sense.
Justice Clarence Thomas captured that notion in his concurring opinion. He said sex is “immutable” and “binary,” comprising men and women and boys and girls.
“A man does not have a legal right to compete against women just because he believes that he is a woman,” he said.
President Trump called the ruling a “big win” and characterized it as a decision “against men playing in women’s sports.”
“That takes that ridiculous situation off the table,” he wrote on social media.
In fact, it does not settle the issue but instead gives states the freedom to decide whether to adopt an expansive or limiting policy.
One case involved Lindsay Hecox, a transgender athlete who takes testosterone suppression and estrogen treatments and who sought to try out for track and cross-country teams at Boise State University.
The other involved Becky Pepper-Jackson, known in court documents as BPJ because she is a minor. She transitioned from male to female in the third grade and competed in women’s sports as a student in West Virginia.
Last month, she won a girls’ high school state title in shot put, challenging those who argue transgender girl athletes do not have an automatic physical advantage.
Lower courts had ruled against the Idaho and West Virginia laws, citing the equal protection clause of the Constitution and Title IX, a civil rights law enacted in 1972 to bar sex discrimination in education. It was updated in 1974 to expand opportunities for girls’ and women’s sports.
Justice Kavanaugh said the science behind transgender athletic performance is evolving.
He pointed to the International Olympic Committee’s recent decision to bar biological males from women’s sports, as well as the NCAA’s decision last year.
The IOC concluded that biological male athletes “retain” too much of a performance advantage, no matter what hormone treatments or testosterone suppression they undergo.
Although discrimination is generally barred by the Constitution and civil rights law, laws treating men and women differently are subject to lower standards and can be justified if the government has an “important” objective.
Justice Kavanaugh said protecting biological women qualifies on both safety and fairness grounds.
“In the distinctive sports context, in other words, the states may treat all biological males the same and treat all biological females the same, given the inherent physical differences between biological males and biological females,” he wrote.
The justices’ approach to transgender issues contrasts starkly with how they have approached gay rights over the previous two decades.
Led by Justice Anthony M. Kennedy, who retired in 2018, the court tore through state laws that had restricted same-sex rights. That culminated 10 years ago this week with the Obergefell case, which found a constitutional right for same-sex couples to marry.
On transgender rights, however, the court has been more cautious.
In a 2020 case, the Bostock ruling, the justices decided that job discrimination against transgender employees was the same as discrimination based on sex, and so is barred by federal civil rights law.
In the Skrmetti case last year, however, the justices gave states leeway to enact laws restricting medical treatments such as hormones and puberty blockers given to children seeking to transition. In that decision, the high court said the science behind transgender matters was too unsettled for the justices to weigh in with big pronouncements.
The ruling Tuesday continues that trend.
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