This story was originally published by Chalkbeat. Sign up for their newsletters at ckbe.at/newsletters
The U.S. Supreme Court’s June 30 decision on transgender sports participation 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 — there’s no constitutional problem, the court’s conservative majority found.
But states without such bans can maintain more inclusive policies. Nothing in the ruling requires that states keep transgender athletes out of women’s and girl’s sports.
But that’s just one piece of the story. Advocates on both sides expect the fight in states and the courts to continue. And the Supreme Court majority’s 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 doesn’t change anything in those states.
Bolstered by the Supreme Court ruling, people who don’t believe transgender athletes have a place in girl’s sports hope to change that through the legislative process. Voters in Colorado and Washington will also get to decide whether to adopt bans through ballot measures.
Beth Parlato, an attorney with the conservative Independent Women’s Law Center, said she can now reassure lawmakers and the public that any ban they adopt is legal. Parlato said she’s also fielding calls about how the ruling might affect interstate competition when states have different standards.
“As litigators, we keep making these arguments until we win,” she said.
LGBTQ advocates, meanwhile, hope they can succeed in the court of public opinion in a way they didn’t with the Supreme Court.
“We’ve never been favored by the laws, and we know that the courts are not the be-all, end-all,” said Shawn Meerkamper, managing attorney at the Transgender Law Center. “We’re on to the next fight.”
All youth need opportunities to be physically active
Soju Hokari, a transgender athlete who described sports as a vital part of her childhood 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 “an obligation to make sure we’re making space for trans athletes to thrive.”
Writing in the newsletter QueerED, teacher and researcher Benjamin Lebovitz pointed to data from Wisconsin that showed transgender and questioning youth were much less likely to participate in sports 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 doesn’t define sex. Federal courts have said that sex discrimination includes discrimination based on sexual orientation, gender identity, and sex stereotypes — the idea that boys should be one way and girls another. Civil rights guidance from Democratic presidents supported this interpretation.
Conservatives disagree. They say there’s 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 mushy concept scientifically.)
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 Tuesday’s ruling to find that sex means biological sex. The justices did not go that far.
And the ruling doesn’t officially endorse the Trump administration’s interpretation of Title IX, 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, “cannot plausibly be interpreted to refer to anything other than biological sex.”
Advocates and legal experts said that position could play a role in future lawsuits.
Neil Gorsuch’s balancing act confuses both sides
Conservative Justice Neil Gorsuch wrote the majority opinion in the 2019 case Bostock v. Clayton County, which found that Title VII’s 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.
“It 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,” he wrote.
Gorsuch seems to have pleased no one.
Parlato of the Independent Women’s Law Center said Gorsuch tried to “thread a needle” but that his logic doesn’t hold up.
And Meerkamper of the Transgender Law Center said “there’s no principled way” to support both the Bostock decision and the court’s new sports ruling. What’s changed, he said, is the political environment for trans rights between 2019 and 2026.
Still, unlike Justice Clarence Thomas, Gorsuch didn’t call transgender identity a mental illness.
SCOTUS 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 majority’s opinion did not find that transgender people have similar protections. But it didn’t 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 — though she has few illusions that the Supreme Court’s current justices will be receptive to those claims.
But Anna Kirkland, an attorney and professor of gender studies at the University of Michigan, said it’s 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 women’s sports.
Under this approach, she said, women might not have been admitted to elite military academies, for example. And it could mean other policies that only affect a small number of people who don’t conform to gender stereotypes are allowed to stand in the future.
“This ruling shows how the conservative majority is narrowing what equal protection means for everyone,” she said.
Erica Meltzer is Chalkbeat’s national editor based in Colorado. Contact Erica at [email protected].
Chalkbeat is a nonprofit news site covering educational change in public schools.
