Supreme Court Sides With Red States Over Bans on Trans Athletes
But whether the law requires such restrictions is still ‘an open question,’ experts say.
;)
Education news and commentary, delivered right to your inbox.
Sign up for The 74 newsletter.
Get stories like this delivered straight to your inbox. Sign up for The 74 Newsletter
States can block transgender athletes from playing on girls’ and women’s sports teams, the U.S. Supreme Court ruled Tuesday, handing the Trump administration a victory in its effort to enforce such restrictions.
In a 6-3 decision, the conservative court said that West Virginia and Idaho did not break the law when they passed legislation prohibiting trans athletes from competing against biological women and girls.
Becky-Pepper Jackson, a transgender 10th grader and track athlete in West Virginia, argued that such regulations are “unreasonable.”
“We disagree,” Justice Brett Kavanaugh , bringing his perspective as a girls’ to the case. “Separate sports teams for biological males and biological females are reasonable: 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.”
Attorneys who represented Jackson and Boise State University transgender student Lindsay Hecox called the opinion a “heartbreaking ruling” and “deeply harmful.” The decision, however, doesn’t settle an ongoing legal debate over whether Title IX requires that participation in sports be based on biological sex determined at birth.
“I’m not terribly surprised by the outcome, given the court’s opinions in the last year,” said Jenny Denny, a California-based attorney specializing in education and Title IX compliance. “I think we could read the writing on the wall.”
Last year, the court upheld a Tennessee law prohibiting gender affirming care for minors, and in April, conservatives sided with California parents who argued that districts should alert parents if their child wants to change their gender identity.
But she said the court’s opinion did not redefine Title IX to suit the administration.
“Using a sports analogy, which is fitting for today, it’s not a slam dunk for the U.S. Department of Education,” she said. “I think we’ll see the Department of Education cherry pick some language from the opinion today, but it still doesn’t give a clear answer.”
The decision doesn’t prevent states like California from maintaining policies that allow trans athletes to compete in line with their gender identity. But it also means the administration will likely continue its to prevent trans-inclusive policies through and threats to strip federal education funds from districts.
Education Secretary Linda McMahon suggested as much in her comments on the ruling.
“This is a tremendous victory,” she said, “and we look forward to ensuring that every educational institution in America abides by the law of the land.”
The department’s enforcement actions have been based on an President Donald Trump signed last year, but now officials will likely apply the court’s opinion to any future effort to rewrite the Title IX rule, said Joshua Dunn, executive director of the Institute of American Civics at the University of Tennessee, Knoxville. He frequently writes legal commentary for EdNext.
He agreed that whether Title IX allows schools to include trans athletes in girls’ sports is still “an open question.”
Beth Parlato, senior legal counsel for the conservative Independent Women’s Law Center, called the opinion a “huge win,” but added, “There’s more work to do.”
Congress, she said, needs to “do its job” and pass legislation that would apply to all states.
In a partial dissent, Justice Sonia Sotomayor, joined by the other two liberals on the court, agreed with Kavanaugh on Title IX. But she said the majority should have sent Jackson’s case back to the lower courts for further “factual findings about the state of the scientific debate” under the equal protection claim.
“A restrained approach, based on all relevant facts, is particularly necessary when the court is faced with a consequential decision of constitutional dimension,” she wrote.
While Jackson will likely not be able to compete in track this fall, Andrew Ortiz, senior policy attorney at the Transgender Law Center, said Tuesday’s decision won’t have a major impact. because there were already so few trans students participating in sports in the 28 states that tried to ban their participation. In those states, intramural sports and private schools, “could still be options,” he said. While the cases now go back to the lower courts, he expects the states to “pretty quickly” prevail in their efforts to enforce their laws.
‘Back of the pack’
As is often the pattern, the justices released opinions with the most nationwide impact at the end of their term, one in which Trump’s agenda, from immigration reform to voting laws, has . While Hecox and Jackson challenged the laws in their states before Trump took office, the administration took part in the case, arguing that states shouldn’t have to carve out a special exception for transgender athletes even if, as their attorneys argued, their physical advantages have been diminished by puberty blockers or drugs to suppress testosterone.
In fact, several months after the oral arguments, Michael R. Williams, West Virginia’s solicitor general, argued that the opposite is happening. In May, he that Jackson finished fourth in discus and first in shot put in a statewide track and field competition.
“As a high-school sophomore, B.P.J. is not finishing ‘near the back of the back,’ “ , referencing the from Jackson’s legal team in the case. Jackson “is instead defeating every — or nearly every — female in the state in these events.”
But LGBTQ advocates, like the , argue that because transgender athletes represent such of students participating in sports, it’s misleading to say they are dominating competitions or “stealing” first place medals from women and girls.
The debate continued at the appeals court level even while the Supreme Court deliberated in the West Virginia and Idaho cases.
In April, the U.S. Court of Appeals for the Eighth Circuit an advocacy group, , in their argument that a Minnesota policy is discriminatory because it allows trans athletes to compete in sports consistent with their gender identity.
The court said that Trump’s executive order and the administration’s actions against states and districts didn’t settle the legal dispute over the issue.
“The executive branch’s views on that question may guide its own enforcement approach,” wrote Raymond Gruender, a George W. Bush appointee. “But they cannot independently establish a ‘strong likelihood’ that [the athlete’s] participation violated Title IX or its implementing regulations.”
Did you use this article in your work?
We’d love to hear how The 74’s reporting is helping educators, researchers, and policymakers.
