Gent Shkullaku/Imago/Zuma
A Republican-appointed majority of Supreme Court justices appeared ready to uphold two state laws that ban transgender women and girls from participating on girls and women’s school sports teams. Though the scope of the rulings and how sweeping its implications will be both remain unclear, oral arguments on Tuesday showed there are likely at least five votes for upholding transgender sports bans in Idaho and West Virginia.
Justice Kavanaugh called sports a “zero-sum game” where trans players inevitably cost cis players.
The justices heard two cases on Tuesday, one brought by a college student in Idaho and one brought by a now-high school student in West Virginia. Going into oral arguments, there were fears that the justices—who have amassed a recent track record of ruling against the rights of trans people—might use the occasion to broadly undermine transgender rights, and not just in school sports. And in both cases, a majority of the court’s right wing appeared ready to rule in favor of the laws and against exceptions for either plaintiff. But whether or not the rulings would have further impact remained unclear. A decision in the cases is likely to come at the end of the term in June.
One key vote appears to be Chief Justice John Roberts, who six years ago joined the landmark Bostock decision finding that discrimination against gay and transgender people in employment contexts is illegal sex discrimination under Title VII of the 1964 Civil Rights Act. Bostock was a 6-3 decision authored by Justice Neil Gorsuch, and joined by Roberts as well as four Democratic appointees. There are now just three Democratic appointees, lowering the current Bostock majority down to five. But on Tuesday, when it comes to whether to allow banning trans students from sports, Roberts’ comments indicated that he was switching teams.
“In terms of Bostock, I understand that to say that discrimination on the basis of transgender status is discrimination on the basis of sex,” Roberts said Tuesday. “But the question here is whether or not a sex-based classification is necessarily a transgender classification.”
The idea put forth by Roberts here is that while transgender discrimination is part of the sex discrimination Venn diagram, rules limiting team membership to a single-sex do not necessarily target transgender people. This may be technically true, but it’s too cute in this context. It allows Roberts to ignore the obvious, purposeful effect of discriminating against trans people by using terms like biological sex rather than the term transgender. There is a long history of discriminating against classes of people without specifically naming the target—literacy tests and grandfather clauses come to mind.
Roberts’ comments are unsurprising. He made essentially the same argument last year in authoring the Skrmetti decision, in which the court allowed states to ban gender affirming medical care for transgender minors on the grounds that the prohibitions were based on age and on medical use—even though it was clear that the laws were targeted at transgender kids. In this way, Roberts’ logic provides a door to more anti-trans discrimination under the guise of legitimate purposes.
Gorsuch, who authored Bostock, was harder to pin down during oral argument, but he too indicated that he sees school sports as different from Bostock‘s workplace context. Even if Gorsuch were to surprise courtwatchers and side with the plaintiffs, it appeared unlikely that there is a fifth vote to either strike down the laws or, as the three Democratic appointees were pushing for, allow exceptions for transgender athletes who prove they do not have a biological advantage over their cisgender teammates.
Justice Brett Kavanaugh raised the possibility using the case to ban trans students’ participation in sports in states where they are currently allowed to join girls and women’s teams, and even repeatedly asked whether allowing transgender women and girls to play alongside cis women and girls actually violated the rights of those cis teammates under Title IX, which requires equal opportunities in education. He called sports a “zero-sum game” in which a trans player inevitably costs a cis player a spot on the team, or the podium, or a college recruitment offer. The ACLU’s Joshua Block, arguing for transgender teen Becky Pepper-Jackson of West Virginia, responded that girls lose these opportunities to other girls all the time. If they lose them to a trans girl whose medical transition has erased any biological advantage, then there’s no real difference.
As Block points out, the question of whether trans athletes have an advantage animates the arguments on both sides. The science is unclear. The plaintiffs argue that if they can show there is no unfair advantage, then they should be allowed to play. The states, as well as the Trump administration, argue there should not be exceptions.
The question of whether the biological sex requirement should be waived for trans athletes who can demonstrate no advantage was a long and technical part of oral argument, but it also was particularly revealing. One side says if there’s no advantage, let them play. The other side still says no.
