What SCOTUS didnât say about transgender athletes, and what the ruling means for schools and students
What SCOTUS didnât say about transgender athletes, and what the ruling means for schools and students
The U.S. Supreme Courtâs June 30 in some ways simply upheld the status quo.
States that prohibit transgender athletes from playing on teams that match their gender identity can keep doing so â .
But states without such bans can maintain more inclusive policies. Nothing in the ruling requires that states keep transgender athletes out of womenâs and girlsâ sports.
But thatâs just one piece of the story. Advocates on both sides expect the fight in states and the courts to continue. And the Supreme Court majorityâs reasoning raises new questions about the boundaries of transgender rights and gender protections more broadly.
Fight over transgender athletes to continue in states
More than 20 states still allow transgender athletes to participate on sports teams that match their gender identity, provided they meet certain criteria, and the Supreme Court ruling doesnât change anything in those states.
Bolstered by the Supreme Court ruling, people who donât believe transgender athletes have a place in girlsâ sports hope to change that through the legislative process. Voters in and will also get to decide whether to adopt bans through ballot measures.
Beth Parlato, an attorney with the conservative Independent Womenâs Law Center, said she can now reassure lawmakers and the public that any ban they adopt is legal. Parlato said sheâs also fielding calls about how the ruling might affect interstate competition when states have different standards.
âAs litigators, we keep making these arguments until we win,â she told .
LGBTQ advocates, meanwhile, hope they can succeed in the court of public opinion in a way they didnât with the Supreme Court.
âWeâve never been favored by the laws, and we know that the courts are not the be-all, end-all,â said Shawn Meerkamper, managing attorney at the Transgender Law Center. âWeâre on to the next fight.â
All youth need opportunities to be physically active
Soju Hokari, a and her development as a person, said those who care about trans youth must find ways for them to get the benefits of sports, even in states with bans. That might mean creating clubs outside school or officially sanctioned teams.
Hokari said everyone involved in sports has âan obligation to make sure weâre making space for trans athletes to thrive.â
Writing in the , teacher and researcher Benjamin Lebovitz pointed to data from Wisconsin that showed or be physically active than their peers. That gap grew as the political debate over transgender athletes heated up, and Lebovitz fears the Supreme Court ruling will only exacerbate that withdrawal.
Schools should make sure all students have access to physical education, open gym time, and intramural and club sports, and they should make co-ed teams when dividing students, Lebovitz wrote.
The definition of sex remains legally ambiguous
Title IX prohibits discrimination on the basis of sex in education and athletics while allowing sex-separated sports teams. But it doesnât define sex. Federal courts have said that sex discrimination includes discrimination based on sexual orientation, gender identity, and sex stereotypes â the idea that boys should be one way and girls another. Civil rights guidance from Democratic presidents supported this interpretation.
Conservatives disagree. They say thereâs little doubt lawmakers were thinking of biological sex when they passed Title IX in 1972. (Biological sex feels intuitive to most people in most situations, but it can be a .)
Conservatives hoped that the Supreme Court might use the Hecox v. Little and West Virginia v. B.P.J. cases that were the basis for Tuesdayâs ruling to find that sex means biological sex. The justices did not go that far.
And the ruling doesnât officially endorse , which the Office for Civil Rights has used to justify investigations into school districts and states with inclusive sports policies.
But Justice Brett Kavanaugh did write that sex, especially in the portions of Title IX dealing with sports, âcannot plausibly be interpreted to refer to anything other than biological sex.â
Advocates and legal experts said that position could play a role in future lawsuits.
Neil Gorsuchâs balancing act confuses both sides
Conservative Justice Neil Gorsuch wrote the majority opinion in the 2019 case , which found that Title VIIâs protections against sex discrimination on the job also protected gay and transgender employees.
In a concurrence to the sports decision, Gorsuch tried to explain how he could hold that view and still vote to uphold bans on transgender athletes. Title VII bans discrimination while Title IX allows for separation of men and women in some circumstances, he noted.
âIt is a mistake to assume that, just because firing someone in part because of his biological sex amounts to unlawful discrimination in violation of Title VII, sponsoring a single-sex sports team limited to biological women or girls must also amount to unlawful discrimination in violation of Title IX,â he wrote.
Gorsuch seems to have pleased no one.
Parlato of the Independent Womenâs Law Center said Gorsuch tried to âthread a needleâ but that his logic doesnât hold up.
And Meerkamper of the Transgender Law Center said âthereâs no principled wayâ to support both the Bostock decision and the courtâs new sports ruling. Whatâs changed, he said, is the political environment for trans rights between 2019 and 2026.
Still, unlike Justice Clarence Thomas, Gorsuch didnât call transgender identity a mental illness.
SCOTUS remains silent on what protections transgender students have
Race and sex are protected classes, and potentially discriminatory laws must demonstrate some significant public interest to pass legal muster.
The conservative majorityâs opinion did not find that transgender people have similar protections. But it didnât find that they did not have such protections either. In short, they evaded the issue.
For Deborah Drake, a law professor at the University of Pittsburgh, that leaves an opportunity to challenge transgender discrimination in the courts â though she has few illusions that the Supreme Courtâs current justices will be receptive to those claims.
But Anna Kirkland, an attorney and professor of gender studies at the University of Michigan, said itâs deeply concerning that the majority gave so much deference to state laws without requiring more evidence that women and girls are harmed when transgender athletes participate in womenâs sports.
Under this approach, she said, , for example. And it could mean other policies that only affect a small number of people who donât conform to gender stereotypes are allowed to stand in the future.
âThis ruling shows how the conservative majority is narrowing what equal protection means for everyone,â she said.
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