Supreme Court upholds transgender athlete bans in Idaho, West Virginia
The Supreme Court approved state bans on transgender women and girls in sports, siding with Idaho and West Virginia in cases that affect bans in more than half the states around the country.
Justice Brett Kavanaugh wrote for the court that under federal law and the Constitution, schools can “maintain women’s and girls’ sports for biological females.” The Trump appointee wrote that schools can “determine eligibility for women’s and girls’ sports
based on biological sex.”
Kavanaugh noted the court wasn’t deciding the separate question of whether schools can allow “biological males who identify as female to participate on girls’ and women’s sports teams.” He said that question is currently being litigated in the lower courts. So that issue could be addressed by the court in the future.
“Nothing in this opinion is intended to decide that question,” Kavanaugh wrote, adding that the opinion also should not be interpreted “to address or limit participation by biological females on male or co-ed sports teams.”
The court’s Democratic appointees filed separate opinions partially dissenting from the ruling.
Writing for the Democratic appointees, Sotomayor said she agreed with the majority on the question under federal law but on narrower grounds. Yet on the constitutional issue she said the majority “gets the answer wrong.” She said the majority “inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions.”
The decision follows the court’s 6-3 ruling last term in the Skrmetti case that upheld a ban on gender-affirming care for minors. The court split along those same lines earlier this term in siding with California parents on school policies that sought to prevent outing transgender students.
In the sports cases decided Tuesday, Idaho defended its Fairness in Women’s Sports Act, the first law of its kind, passed in 2020, that banned transgender women and girls from participating in women’s student sports.
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Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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