Supreme Court, in Landmark Ruling, Okays State Bans on Transgender Sports Participation

The Supreme Court’s conservative supermajority ruled that a pair of Republican-controlled states did not, between them, violate the Constitution or federal law by barring biological males from participating in girls and women’s sports. Specifically, the court ruled that such policies violated neither the Equal Protection clause nor Title IX, notwithstanding the fact that the two plaintiffs, who were born male, each identified and presented as female and had undergone sustained gender-transition treatment.The landmark ruling, issued Tuesday and written by Justice Kavanaugh, handed a bruising, if generally expected, defeat to the transgender cause. The justices ruled six to three, with the conservatives in the majority, on the constitutional question, finding that the state laws did not violate the Equal Protection Clause of the 14th Amendment. The court ruled unanimously that one state’s ban did not violate Title IX, although the three liberal justices argued that the associated case’s plaintiff should have been permitted to continue pursuing her lawsuit under the constitutional question. Justice Kavanaugh, who has a history of coaching youth sports, wrote that “the Title IX regulations guarantee ‘equal athletic opportunity.’ The regulations cannot and do not guarantee every student a spot on a team’s roster.” He further wrote: “No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified.” The decision effectively gives the court’s blessing to similar bans on transgender inclusion in girls and women’s sports that Republicans have passed in just over a majority of U.S. states. “This is a heartbreaking ruling for our clients and transgender girls like them who’ve asked for nothing more than the same opportunities afforded to their peers,” said Joshua Block, senior counsel for the ACLU’s LGBTQ & HIV Rights Project, who argued before the court on behalf of one of the plaintiffs. “The reality is that the equality of transgender women and girls takes nothing away from, and in fact promotes, the equality of all women and girls.”The decision represented a victory for those who have argued, at a minimum, that the transgender movement has overreached in recent years and that it is unfair for those born male to compete in sports reserved for girls and women. Celebrating the decision, West Virginia Attorney General John B. McCuskey called for a national ban on cross-sex participation in girls and women’s sports.“It’s time for a national policy on this issue. This is common sense,” he said. “It’s time for Congress to stand up, take a stand, and right this wrong—something they should have done a very long time ago.” As the court did in last year’s monumental case over state bans of gender-transition medications for minors, the majority opted not to weigh in on whether transgender status qualifies for heightened protection under the Equal Protection clause as sex does. The ACLU and other liberal legal advocacy groups have long sought such status for the transgender population, with some success in the lower courts, including the Ninth Circuit Court of Appeals’ decision about one of the sports cases.In an upside for the transgender cause, however, the sports decision was written quite narrowly. Justice Kavanaugh skirted the sort of sweeping ruling that might have unleashed a cascading series of further losses for the trans movement by rigidly defining gender identity as distinct from sex under federal law. Such a broad ruling, legal experts believe, could have buttressed recent conservative efforts, for example, to place biological males identifying as female in men’s prisons and to restrict gender markers on government-issued identity documents to an individual’s biological sex.However, in a call with reporters, Idaho Attorney General Raúl Labrador predicted that the ruling would aid in efforts to defend laws that bar cross-sex entry into bathrooms in ongoing litigation in lower courts. Idaho’s own bathroom ban is the most severe in the nation. “The fact that the equal protection argument was pretty clear — clearly decided by the court in this case — I think it will be applicable to some of the cases that we have,” Mr. Labrador said in reference to such litigation.The court also left open the question, posed by a lawsuit making its way through lower courts, of whether the NCAA and federally funded institutions are, in fact, required by Title IX to exclude all biological males from women’s sports. “Consistent with Title IX and the Equal Protection Clause, we hold that the States may maintain women’s and girls’ sports for biological females,” Justice Kavanaugh wrote. “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.”Of the six conservative members of the court, Justices Thomas and Gorsuch each filed separate concurring opinions. The three liberal justices found that the Title IX claim failed on narrower grounds than their conservative colleagues did. Justice Sotomayor filed an opinion concurring with the judgment in part and dissenting in part; she was joined by the court’s other two liberal justices. Justice Jackson also wrote separately, joining Justice Sotomayor in full.Beginning in the mid-1990s, the gay rights movement enjoyed a mounting parade of wins in the courts, culminating in the 2015 landmark decision, Obergefell v. Hodges, that legalized same-sex marriage nationwide. Following that apex, many leading LGBTQ advocacy groups turned their attention to transgender issues — a shift that coincided with increasing visibility of transgender people in popular culture and civic life. In tandem, Republicans largely abandoned previous efforts to leverage homosexuality as a political wedge issue and instead launched a redux of such campaigning that essentially substituted transgender people for gays.This conservative movement has proven broadly successful at both instituting policy and, apparently, in helping shift public opinion. Polling suggests that broad swaths of the electorate, including either close to a majority or a majority of Democrats, depending on the poll, believe those born male should not participate in the female category; these polls typically don’t differentiate by the age of the athletes though. The sports ruling joins a series of major recent Supreme Court losses for the transgender cause. This includes U.S. v. Skrmetti, in which the conservative majority a year ago effectively validated the bans, passed in just over half the states, of gender-transition treatments for minors. And in an eight-to-one decision issued in March in Chiles v. Salazar, the court threw into jeopardy state bans, passed in nearly half the states, of so-called conversion therapy for minors, which involves efforts to change a person’s sexual orientation or gender identity. Tuesday’s joint ruling responded to a pair of lawsuits, West Virginia v. BPJ and Little v. Hecox, that were each brought by a plaintiff who was born male, identifies as a transgender female, and has undergone gender-transition treatment. The former case concerned Becky Pepper-Jackson, now a rising high school junior, who sued West Virginia over a state law that barred biological males from participating in girls’ sports in secondary schools and college. The latter suit was filed by Lindsay Hecox, who is near graduating from Boise State University. In that case, the plaintiff contested a similar ban in Idaho, which also applies to K-12 as well as collegiate athletics. Appeals courts ruled at least partially for the plaintiffs in both cases. This included the Second Circuit Court, which found that Idaho’s ban as it applies to Ms. Hecox likely violates the Equal Protection Clause. The Fourth Circuit Court found that West Virginia’s law as it applied to Ms. Pepper-Jackson violated Title IX. Whereas the Biden administration sided with the plaintiffs, the Trump administration’s Department of Justice switched sides to back the states. The liberal legal group the ACLU defended the plaintiffs while the conservative legal nonprofit the Alliance Defending Freedom defended the states. Since 2020, 27 states have passed laws that restrict cross-sex participation in the female category in school sports regardless of a student’s gender identity, gender presentation, or gender-transition-treatment status. The general ostensible purpose of these laws is to protect girls and women from the unfair athletic advantage that those born male generally hold. Some also bar cross-sex participation by biological girls who identify as male. Overall, the restrictions vary by state. They typically cover K-12 and college-level athletics, according to the Movement Advancement Project, an LGBTQ think tank. The handful of transgender athletes who have won championships in girls and women’s sports have drawn outsize national attention and extreme political scrutiny in recent years. Swimmer Lia Thomas became the first such athlete to win an NCAA Division I title in 2022. The second Trump administration has responded by compelling universities to bar biological males such as Ms. Thomas from women’s athletics as a condition of receiving federal funding. Last year, the president issued an executive order barring federal funding for schools permitting such transgender inclusion in sports; immediately afterward, the NCAA adopted a policy in line with the president’s demands. Previously, the collegiate sports association had permitted transgender women to compete in women’s athletics under certain parameters, including their having undergone sustained testosterone suppression.Earlier in the process of litigating her case, Ms. Pepper-Jackson’s attorneys sought to emphasize her distinct lack of athletic prowess, pointing to her lackluster performance in middle-school cross country. However, as Ms. Pepper-Jackson grew older, she hit her stride. Benefitting from an injunction that blocked the West Virginia law as her case was pending, Ms. Pepper-Jackson placed first in the shot put in the girls’ Class AAA state championship in May. Her success only lent further ammunition to attorneys defending the state who argued that she had unfairly displaced a long roster of girls in athletic competition.Ms. Hecox, on the other hand, was never an imposing athlete. She tried out for but failed to make the track and field team at Boise State. In an unusual move for plaintiffs’ attorneys, the ACLU had sought to convince the court to find Ms. Hecox’s case moot, given she had agreed to cease pursuing college sports and was about to graduate. The court’s majority declined to accept the bid for moot status, although the liberal justices argued that it should have.As with the Skrmetti case, the high court was tasked with determining whether each state’s sports ban violated the Equal Protection clause of the 14th Amendment. In the lawsuit over West Virginia’s law, the justices further grappled with whether it violated Title IX of the Education Amendments of 1972. In conjunction with a 1974 amendment, Title IX governs women’s access to sports in federally funded school settings. The law permits, but does not require, the female sports category as a means of promoting Title IX’s demand for equal access to sports opportunities.Conflicting theories about Title IX’s application to transgender students have attained increasing tension and urgency in the legal arena as transgender identification has surged among young people since the early 2010s in tandem with the burgeoning of intellectual movements that have sought to deconstruct the very notion of the human sex binary. As recently as the 2000s, openly transgender adolescents were rare. By 2023, one national survey found that 3.3 percent of teenagers identified as transgender. So how to determine the meaning of the word “sex” in Title IX when at least some of society now considers a person’s cross-sex identity as their de facto sex? The conservative majority ruled that the word referred to biological sex.The high court might have interpreted Title IX as protecting biological males who identify as female from exclusion from the female category. Lawyers for Ms. Hecox and Ms. Pepper-Jackson, while focusing on the equal-protection angle, argued that anti-discrimination protection for biological males participating in girls and women’s sports should only apply if the athletes have, like the plaintiffs, undergone gender-transition treatment. Attorneys for the states argued that Title IX should protect biological women from the inclusion into the female category of any biological males, regardless of their gender identity or any gender-transition medical interventions they have received.The two sports-ban cases also raised a roster of complex questions regarding fairness in sports, exercise physiology, and the impacts of testosterone suppression and estrogen treatment on the sports performance of those born male. However, in the end, the court’s majority opted to put aside these complex discussions and issue a narrowly crafted decision. The Idaho case in particular dragged on for so long — it was filed in 2020 — that the available scientific research on gender-transition treatment evolved, leaving the case record unable to keep pace. (The admission of new evidence is supposed to be limited to the district-court phase.) The district court accepted expert testimony that someone who, like Ms. Hecox, had been through male puberty but then had undergone sustained gender-transition treatment held no competitive advantage in women’s sports. But more recently published scholarship has called that finding into question and suggested that such treatment does not fully erase the overall athletic advantage conferred by male puberty. This remains an active area of scientific debate.The West Virginia lawsuit raised complex questions about how the law should treat rare cases of biological boys like Ms. Pepper-Jackson who began taking puberty blockers soon after puberty’s onset and then took estrogen to undergo a full female puberty. Ms. Pepper-Jackson’s attorneys argued that she had the physiology of a girl, and thus she should be categorized as one for the purposes of sports participation. Some research has suggested that because prepubescent boys still hold a significant, albeit small, athletic advantage over their female counterparts, even someone who underwent Ms. Pepper-Jackson’s treatment trajectory might still hold an intrinsic athletic advantage in girls and women’s sports. Given the swift evolution of the relevant research base, the liberal justices called for the West Virginia case to be sent back to a lower court for more fact-finding. But the conservative majority refused. Citing Skrmetti, Justice Kavanaugh wrote that courts were ill-equipped to grapple with “medical and scientific uncertainty.” Mr. McCuskey argued on the call with reporters that, given the state of the science, West Virginia’s case would have succeeded had it returned to a lower court.During oral arguments, the implications of the plaintiffs’ gender transition treatment prompted lively discussion about whether, to pass muster under the Equal Protection clause, policies that discriminated by sex needed to be a “perfect fit” with the government’s objective of promoting fairness in sports — in this case by creating a small subcategory that folded the plaintiffs into the female category. Or did state law governing sports participation merely need to be a “reasonable fit”? This would allow for at least some people’s exclusion from the female sports category, including the plaintiffs. The argument that the state laws should be found unconstitutional because they were not properly tailored to the plaintiffs’ needs in particular — known as an “as-applied challenge” — Justice Kavanaugh wrote, “is in essence a backdoor argument” for the highest level of legal scrutiny demanded under the Equal Protection clause. Called strict scrutiny, this is reserved for laws that discriminate, for example, by race.“But strict scrutiny does not apply to sex-based classifications, as the plaintiffs acknowledge,” Justice Kavanaugh wrote. “And strict scrutiny would be particularly out of place in this sports case, where sex-based classifications are permitted and the only question is whether the States may limit women’s and girls’ sports to biological females.”Under the Equal Protection clause, sex-based discrimination warrants what is known as an intermediate level of legal scrutiny to pass muster. Justice Kavanaugh further wrote: “States are not required to conduct an individual-by-individual comparison of the physical and athletic capabilities of all biological males in order to satisfy intermediate scrutiny.” The director of constitutional studies at the Manhattan Institute, Ilya Shapiro, praised the decision, saying in an emailed statement that the court “got this exactly right.” “The 14th Amendment doesn’t block common-sense distinctions that reflect inherent male advantage in sports,” Mr. Shapiro said. “States have enacted biological-sex-based restrictions for the same reason we have female categories of sports in the first place: men and women are biologically different in ways relevant to athletic competition, so it makes sense to separate the sexes.”Justice Kavanaugh, Mr. Shapiro noted, wrote that the 14th Amendment “does not prohibit the States from applying that same principle to all biological males, including those who identify as female.”A professor at Columbia Law School who directs the sexuality and gender law clinic, Suzanne B. Goldberg, expressed her dismay at the ruling. “Disappointingly, the Court allowed generalizations about transgender people to override real life,” she said, noting the particulars of Ms. Pepper-Jackson’s medical transition. “By treating transgender student-athletes as a looming and excludable threat rather than young people trying to thrive alongside their peers, the Court missed the point that our Constitution and federal law both require states to treat people as individuals.”Even facing such a conservative court, attorneys for the plaintiffs had held out hope for success in the sports cases akin to the Bostock v. Clayton County decision. Authored, to LGBTQ advocacy groups’ surprise, by the conservative Justice Gorsuch, that 2020 ruling determined that Title VII of the Civil Rights Act of 1964 barred discrimination against transgender and gay people in employment settings. Firing an employee because they were gay or transgender, the court’s majority found, invariably turned on a person’s sex. But Bostock was based on a statute that explicitly barred sex-based discrimination. The sports cases raised a constitutional question in which sex-based discrimination is permitted so long as it is substantially related to an important governmental interest, namely protecting fairness and equal opportunity in sports.“Title VII concerns employment, whereas Title IX as relevant here focuses on sports,” Justice Kavanaugh wrote about the question of applying Bostock’s reasoning. “The two factual contexts are vastly different. And the two statutes are also ‘vastly different.’”The court’s majority did not buy the argument by attorneys for the plaintiffs that Ms. Hecox and Ms. Pepper-Jackson, by virtue of their medicalized gender transitions, should be considered “similarly situated” with biological females. Such a designation would have meant that forcing them off the girls’ and women’s teams was unconstitutional and unlawful sex-based discrimination. As with Skrmetti, in which the court determined that states banned certain gender-transition treatments for minors based on age and diagnosis, the court found that these cases didn’t turn on transgender status at all. By the letter of Title IX and the understanding of sex when it was written over five decades ago, the plaintiffs were biological males, the court ruled.This narrow interpretation rendered essentially irrelevant all the scientific questions about exercise physiology, at least in this ruling if not in the ongoing public debate.Justice Jackson argued that Bostock “plainly applies to Title IX” and criticized the majority for not allowing a more flexible definition of sex.Had the court agreed with the plaintiffs’ attorneys that Ms. Pepper-Jackson and Ms. Hecox’s gender identity and gender-transition treatment warranted special carveouts, this would have greatly complicated the application of the law, Justice Kavanaugh noted. In his majority decision, he wrote it “would be an almost impossible task for a judge to perform on an equitable basis. The legislatures and the schools are better equipped — and under the Constitution, are the more appropriate entities — to assess the competing medical and scientific considerations and draw appropriate lines.”Justice Sotomayor argued that given the particulars of her gender-transition treatment, Ms. Pepper-Jackson should have been free to pursue a challenge to West Virginia’s law under the Equal Protection Clause. She wrote that the majority offered a “diminished view of equal protection” and that the majority had ruled “unencumbered by fact or law” by ending Ms. Pepper-Jackson’s litigation prematurely. The court arrived at its decision, she wrote, “by moving the goalposts set by precedent and by resolving this important, divisive issue without knowing all the facts.”“One can only hope that the same misguided approach does not and will not extend to other contexts tomorrow,” she wrote in a hint of her anxieties about the future implications of the ruling.Anticipating the ruling in an essay published earlier this month for the feminist website Dame, a Harvard Law School clinical instructor and transgender activist, Alejandra Caraballo, characterized the implications in dire terms. Arguing that the ruling was the product of a five-decade political project by rightwing advocacy groups to secure “ideological capture” of the courts, Ms. Caraballo wrote: “The only path forward for trans people is to be ruthless in our resistance to this effort and this process.” Posting on social media in response to the ruling on Tuesday, Ms. Caraballo wrote: “I believe protections for trans people under this constitution are effectively dead for a generation.”

Supreme Court, in Landmark Ruling, Okays State Bans on Transgender Sports Participation

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