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What’s at stake in this case?
Multiple states have barred trans women and girls from participating in school sports. West Virginia v. B.P.J. (consolidated with Little v. Hecox) involved trans student athletes’ legal rights under Title IX and the Constitution.
What happened in this case?
This case involves anti-trans laws in two states. West Virginia and Idaho both ban trans girls and women from playing high school and college sports. The Ninth Circuit ruled that the Idaho ban was unconstitutional. And the Fourth Circuit ruled that the West Virginia ban as applied to a trans girl who had taken puberty blockers violated Title IX, which prohibits sex discrimination in education. The Supreme Court took up appeals of both cases together.
How did the Trump and other right-wing justices rule?
The Court’s MAGA majority ruled against trans students on both issues. The 6-3 opinion was written by Justice Kavanaugh.
He first addressed Title IX’s prohibition on discrimination on the basis of sex. The majority interpreted the word “sex” in the sports context to mean the sex identified at birth. (The anti-trans laws and the majority opinion use the term “biological sex.”) They relied in part on the assertion that when Congress passed Title IX and related laws about sports in the 1970s, the term “sex” had no other meaning. So, they concluded, when a state limits a student’s sports participation based on what it calls their “biological sex,” it is simply doing what Title IX specifically allows: separating women and girls from men and boys for sports teams.
The majority also ruled that the trans bans do not violate the Equal Protection Clause. They considered the West Virginia and Idaho laws as making permissible distinctions based on sex, which they equated to what they call “biological sex.” Kavanaugh’s opinion recognized that trans girls who took puberty blockers may not have an inherent advantage over cisgender girls. But he concluded that states are nevertheless free to adopt a blanket ban rather than make individualized fact-based assessments about particular student athletes.
The majority also rejected the framing of these laws as discriminating against trans students, just as they did in last year’s Skrmetti case. They did not explicitly address if a law that (in their opinion) did discriminate against trans people should be subjected to heightened scrutiny under the Equal Protection Clause. However, Kavanaugh noted that three of the justices (Barrett, Thomas, and Alito) have said in concurring opinions that anti-trans laws should not trigger heightened scrutiny.
What did the three other justices say?
Justice Sotomayor wrote separately, joined by Kagan and Jackson. She wrote that, like the majority, they would have ruled against the trans student on the Title IX issue, but not the constitutional issue.
She argued that the majority should not have even decided the Equal Protection question because there were too many unknown facts. Specifically, Sotomayor would have remanded the case back to the lower courts to determine if banning trans girls who take puberty-blocking medications actually advanced the state’s interest in ensuring competitive fairness and safety in girls’ and women’s sports. She condemned the majority for “inflict[ing] a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions.”
Justice Sotomayor also put the state law in context. She noted that West Virginia previously allowed trans girls to play on girls’ sports teams on a case-by-case basis, as long as their schools determined that doing so would not harm fair competition. But the state replaced this with a categorical ban in 2021. She also stressed that “there are plenty of contexts outside of athletics” where Title IX would not permit different treatment for trans students.
Why is the result harmful?
Trans women and girl athletes have fewer rights under the Constitution after this decision. This is particularly ominous at a time when the trans community faces more and increasingly harsh attacks on their rights and dignity from the far right, including the White House. The case shows the importance of having fair justices on the Supreme Court who will respect the rights of all people.