Supreme Court upholds transgender sports bans: What to know and what’s next

CNN

By John Fritze, Devan Cole, Elizabeth Wolfe, CNN

(CNN) — The Supreme Court on Tuesday upheld state bans on transgender students playing on girls sports teams, delivering another blockbuster setback to trans youth and their families in a decision that is likely to sustain similar laws in about half of the nation.

In a 6-3 decision over the dissent of the court’s liberals, the conservative majority ruled that the bans enacted by West Virginia and Idaho do not violate the Constitution’s equal protection clause, and the court unanimously agreed it did not run afoul of a federal anti-discrimination law.

The lawsuits were filed by Becky Pepper-Jackson, a West Virginia high school student who is transgender and who competes on her school’s track team, and Lindsay Hecox, a senior at Boise State University.

Here’s what to know about the court’s decision in what was arguably its most important culture war dispute of the year.

States can decide

The central element of the Supreme Court’s decision, which divided the court 6-3, was that the bans on transgender girls competing on girls sports teams did not run afoul of the 14th Amendment.

Writing for the majority, Justice Brett Kavanaugh reasoned that the laws at issue made a distinction based on biological sex, and that was permitted under the Constitution.

“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,” Kavanaugh wrote.

The ruling marked the latest instance in which the 6-3 conservative court has let states sort out transgender rights for themselves, an outcome that will almost certainly put political pressure on other conservative states to continue to clamp down on gains the transgender community had made in recent years.

At the very least, the court has made clear that it will entertain state laws that work against transgender Americans as long as those laws are focused on “biological sex” rather than explicitly aimed at trans people.

The high court has repeatedly appeared doubtful that the equal protection clause provides stronger civil rights protections to trans Americans, including when it said last year that states could restrict gender identity care for trans minors.

The court’s decision to issue a broad ruling on the sports issue drew fierce pushback from the three liberal members of the bench, with Justice Sonia Sotomayor writing that the majority “badly” erred by not allowing the constitutional claims raised by Jackson against West Virginia’s law to proceed. She said her decision was anchored in the fact that there was an ongoing factual dispute in the litigation that could have ultimately led to a different outcome.

“West Virginia may well have satisfied its burden and seen its ban upheld,” she wrote. “The point, rather, is that this court’s equal protection precedents require a very different approach to (Jackson’s) claim than the one the majority follows today.”

“A restrained approach, based on all relevant facts, is particularly necessary when the court is faced with a consequential decision of constitutional dimension,” Sotomayor wrote.

Perhaps the most surprising element of the court’s decision was not that the transgender students lost, but rather that the court’s liberals concluded that the restrictions do not violate Title IX, a decades-old federal law intended to combat sex discrimination in schools that receive federal funding.

Latest loss for trans Americans

The outcome tracked with the way the conservative majority has ruled in virtually every case dealing with trans Americans to reach its docket.

Joshua Block, an American Civil Liberties Union lawyer who represents Pepper-Jackson, described the ruling to CNN as “a devastating decision for transgender girls who just want to have the same opportunities that other girls do.”

A year ago, in another high-profile merits decision, a 6-3 majority of the Supreme Court let stand a Tennessee law banning transgender care for minors. That decision also bolstered laws in more than 20 states that banned puberty blockers, hormone therapy and other treatment for minors seeking to transition to match their gender identity.

In that sense, the court’s decisions have left the nation divided into one group of states that have clamped down on trans rights and another that have allowed them to flourish. The court has made clear it believes legislatures are best equipped to handle the complicated and often deeply personal questions of gender.

On the federal level, the court last spring allowed the Trump administration to enforce a ban on transgender service members in the military. That case was decided on the court’s emergency docket. In November, the court let the Trump administration require US passports to include a traveler’s sex at birth, rather than a person’s gender identity.

The court went the other way last fall, rejecting an emergency request from South Carolina to enforce a ban on transgender students using school bathrooms that align with their gender identity.

Transgender rights are almost certain to continue to feature prominently on the Supreme Court docket in comings years. In the final days of its term, the court agreed to hear an appeal from parents in Washington who are seeking to challenge state laws permitting runaway minors to receive transgender care without parental notice.

Bolstering other challenges

The court’s three-justice liberal wing got on board with the majority for the proposition that a separate anti-discrimination federal law known as Title IX did not bar the states from banning trans girls in sports. But that’s because all sides agreed that Title IX allows schools to split sports teams between the sexes.

“On this point,” Sotomayor wrote for the liberal bloc, “BPJ’s claim fails because Title IX allows this sex distinction.”

Even as the high court upheld the state sports bans, Kavanaugh’s opinion could help strengthen other cases brought by transgender Americans alleging discrimination by government actors.

Kavanaugh held that the laws amount to sex-based discrimination, which is permissible under the Constitution — but only if a state can demonstrate that such discrimination is “substantially related to an important governmental interest.” What that means is that states seeking to restrict transgender rights can’t just do so for any reason — they will have to meet a higher standard of judicial review in order to have policies cleared by federal courts.

The court said West Virginia and Idaho’s laws can remain intact because they met that higher standard.

“But whether other discrimination against transgender individuals, from bathrooms to military service, could also meet this higher standard remains to be litigated in future cases,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.

“It’s still a significant loss for equality advocates – but one that opens the door to at least some skepticism of other governmental discrimination against transgender individuals going forward,” Vladeck added.

Kavanaugh calls for ‘respect’ for all

Kavanaugh, who often uses reconciliatory language, sought to soften the blow of his 29-page opinion by ending on a sympathetic note.

“Most of the biological female and transgender student-athletes who are involved in transgender sports disputes around the country are teenagers or in their early twenties. Those student athletes want to play sports. Their desire to compete warrants respect,” wrote Kavanaugh, who for years coached his daughters’ basketball teams.

“No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified,” he continued.

The words recalled a similar sentiment Kavanaugh expressed six years ago when the court issued a landmark ruling that extended civil rights protections to LGBTQ workers. Kavanaugh was on the losing side of that dispute, but in spelling out his opposition to the court’s ruling, he pointed to the social and political progress achieved by gay and lesbian Americans in recent years.

“They have exhibited extraordinary vision, tenacity, and grit – battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives,” he wrote in 2020. “They have advanced powerful policy arguments and can take pride in today’s result.”

But on Tuesday, Sotomayor dismissed Kavanaugh’s statements as insincere.

“The majority’s opinion ends by reciting the many wonderful ways in which playing sports can be valuable to young people,” she wrote. “Because of the court’s decision today, West Virginia, and any other state actor, can deny (Jackson) and others like her these experiences simply because it thinks they have an inherent athletic advantage, even if the facts show that they do not.”

Permissive policies go unaddressed

Notably, the court’s decision did not touch thorny questions around whether states can lawfully permit trans women and girls to play on teams that match their gender identity.

In a footnote addressing that issue, Kavanaugh made clear that “nothing in this opinion is intended to decide that question.”

That decision leaves states free to legislate around the issue however they see fit. About half the country currently allows trans athletes to compete on the team that matches their gender identity, according to the Movement Advancement Project.

Similarly, Kavanaugh wrote, the court was not addressing at this time the question of whether cisgender women can compete on men’s or co-ed teams.

What happens in states now?

Conservative lawmakers and anti-trans activists who oppose trans athletes’ participation may be emboldened to push for bans in states where they do not already exist.

“Why should a girl in Texas have different rights than a girl in Connecticut or New York?” said Paula Scanlan, who swam alongside transgender swimmer Lia Thomas at the University of Pennsylvania, on Fox News.

Scanlan is among a group of people who have called on Congress to pass a national ban on trans women in girls sports. Earlier this year, Republican Rep. John McGuire of Virginia introduced the “Riley Gaines Act,” named after the activist and former swimmer who has emerged at the forefront of the conservative anti-trans movement after opposing Thomas’ position as the first transgender athlete to win an NCAA Division I title.

But many bans impact school-aged children who could benefit greatly from the social, physical and mental aspects of athletics, CNN sports analyst and USA Today columnist Christine Brennan said.

“This is now the needle that the sports world is going to thread to make sure they do not exclude children well before the elite level from the opportunity to learn those life lessons playing sports,” Brennan told CNN’s Wolf Blitzer.

Complicating the conversation about transgender athletes is a lack of reliable data on how prevalent trans athletes are, whether in recreational youth sports or in cutthroat international competition. This has led advocacy groups on both sides to make wide-ranging and often conflicting estimates.

In the most competitive arenas, however, figures indicate that transgender people make up a sliver of participating athletes and rarely take top prizes.

Since the International Olympic Committee began permitting trans and nonbinary athletes to participate openly in 2003, fewer than a dozen have qualified. Most have competed on the team consistent with their gender assigned at birth, choosing to forgo hormone replacement therapy in order to qualify for competition. Only one out trans woman, New Zealand weightlifter Laurel Hubbard, has qualified for the Olympics, and she failed to complete a single lift.

NCAA President Charlie Baker testified before the Senate in 2024 that he was aware of “less than 10” transgender athletes competing in the league – a number amounting to less than .002% of its athletes.

And in younger age groups, the Williams Institute, a think tank at UCLA Law, estimates that as many as 122,000 trans youth age 13 to 17 could be participating in high school sports. It is unclear, however, how many play on the team that aligns with their gender identity, as many of them presumably live in states with bans in place.

“I just felt really devastated for all the young kids that are just not going to be able to play sports with their friends,” said Harrison Browne, a former professional hockey player and actor in the Netflix show “Heated Rivalry,” told CNN.

Browne added: “Being authentically yourself while playing the sport that you love is a right that everybody should have.”

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