In a pair of cases decided on Tuesday, the Republican majority on the Supreme Court restricted the ability of transgender young people to participate in school sports with their peers. The people who will suffer most immediately from the Court’s ruling are Lindsay Hecox and Becky Pepper-Jackson, the trans girls and student-athletes whose existence offended Republican lawmakers in Idaho and West Virginia. But the Court’s ruling will have nationwide consequences. The Republican justices have further empowered states to broadly discriminate against transgender people.
Idaho and West Virginia are among the 27 states that have passed laws over the past six years that ban trans women and girls from playing school sports on teams that match their gender identity. Justice Brett Kavanaugh nevertheless wrote for the 6-3 Court in West Virginia v. BPJ that these laws “do not classify based on gender identity or transgender status.” Instead, he said, Idaho and West Virginia’s laws turn on sex alone, without making a special “exception” for a “relatively small subclass” of “biological males who identify as female.” In other words, transgender people don’t exist, so anti-trans discrimination doesn’t exist either.
Under the Fourteenth Amendment, all of the nation’s residents—including trans people—are entitled to “equal protection of the laws.” The Court’s precedents recognize, however, that most legislation involves some kind of classification that may disadvantage somebody. So, when laws do burden some groups unequally, courts ask if states have a good enough reason to impose this particular burden. In this case, Kavanaugh stressed that states with trans sports bans do have such a reason: Sports!
“Sports are different,” Kavanaugh said. Sports are “highly competitive and generally zero-sum,” and at every stage, from making a team to earning an athletic scholarship, “someone wins and someone loses.” The longtime girls’ basketball coach went on at length about the “thrill of victory” and “agony of defeat,” and insisted that the “distinctive sports context” is “crucial.” And he concluded that state laws maintaining school sports teams for “biological females” are “constitutionally justified” by the states’ interests in “ensuring safety and competitive fairness.”
In other words, Kavanaugh really, really wants people to think that West Virginia and Idaho’s laws and his decision upholding them are strictly about sports. None of that is true. Proponents of anti-trans laws have explicitly stated that the sports bans provide an entry point to get people comfortable with opposing “gender ideology” and “the LGBT movement.” And bigots have already recognized the Court’s ruling as validation of their anti-trans agenda. West Virginia v. BPJ offers anti-trans activists with another legal tool to push even further.
Trans sports bans are just one part of a comprehensive effort by right-wing activists to legislate trans people out of public life. Since 2021, lawmakers have introduced at least 3,469 bills to prohibit gender-affirming healthcare, invalidate driver’s licenses and birth certificates that have been updated to accurately reflect trans people’s gender identity, ban basic classroom conversations about gender, and more. The Trump administration has also weaponized the federal government against trans people, including by kicking trans people out of the military, cutting funding to scientific research related to trans health, and launching spurious investigations of hospitals that treat trans patients. In a press release on Tuesday, Trump touted the Court’s ruling in West Virginia v. BPJ as bolstering his efforts to “restore biological reality” and “eliminate transgender insanity.”
None of the animus driving the surge of anti-trans legislation made it into Kavanaugh’s soaring paean to the majesty of sports. West Virginia v. BPJ thus sends a grim message: Government actors can pass laws that single out trans people for disfavored treatment, and the Court will accept just about any excuse to uphold them.
