Supreme Court Upholds States’ Transgender Bans in Girls’ Sports

The Supreme Court on Tuesday ruled to uphold bans on transgender athletes in girls’ sports in the states of West Virginia and Idaho, arguing the laws do not violate the 14th Amendment or Title IX.

The court issued one opinion for two separate cases, West Virginia v. B.P.J. and Little v. Hecox, which will have national implications as 25 additional U.S. states have similar bans for transgender athletes in girls’ and women’s sports. Justice Brett Kavanaugh wrote the 6-3 majority opinion, with the court’s three liberal justices writing dissents.

Kavanaugh wrote that states “may maintain women’s and girls’ sports for biological females,” but adds that transgender athletes must still be included in some way. “No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified.”

Fox News anchor Bill Hemmer broke the news live on air as the opinion came in.

“So now the U.S. Supreme Court has ruled in favor of Idaho and West Virginia laws — the state laws now — that ban transgender athletes from participating on female sports teams. So the challenges against those laws have not prevailed. We don’t know what the breakdown was; some thought it might be 9-0, others were suggesting 7-2. We’ll await that,” Hemmer reported before introducing his panel of experts, eventually turning to Professor Jonathan Turley, saying, “The Supreme Court rules in favor of those laws — break it down.”

“This is what we anticipated after the oral argument. The justices appeared to view this as a matter left to the states. This is welcome news for many in the country. This is an issue that polls almost 70% in favor of keeping sports to biological genders,” Turley replied, adding:

So this is likely to really spur on other states to follow suit in terms of their own laws. It also reflects the fact that the court previously — in fact, last year — said that transgender status is not a protected class in the sense of race or religion. So that is a consistent position. Particularly, justices like Justice Barrett have been extremely outspoken on that point, saying that this is not going to happen — to treat transgender status as that same type of protected class. And during the argument, the litigators actually sort of tried to avoid that, because they knew where the majority of the court was.

“And Shannon Bream, you’ve got a little bit more information for us, as this has just come down from the court,” added anchor Dana Perino.

“Interesting opinion, in that there are all kinds of splits, concurrences, and dissents — but nearly every justice, every justice, has signed on to concur, at least in part. We’ll have to read the different concurrences in the sense here, but all of them support this decision, at least in part, from the majority opinion,” Bream reported, adding:

It says: “Sports are highly competitive and generally zero-sum at almost every turn — someone wins and someone loses. Every athlete who makes a team takes a roster spot from another athlete, and every player who earns playing time reduces the playing time of a teammate. Every player who makes the starting lineup sidelines another who remains on the bench.” They go on to say: “Likewise, every student who earns an athletic scholarship takes that opportunity away from another student.” And so on — women and girls who play sports care deeply about all of these things. They obsess about them.

They spend extraordinary time and effort, in the heat and in the cold, to work out early in the morning and late at night, to get a little faster, a little stronger, jump a little higher, shoot a little better — and it goes on from there. But essentially it says they have to savor these athletic accomplishments and cherish them, and what the states have done here — they say they should be allowed to have these life-changing opportunities on an equal playing field, without fear of physical injury from being forced to compete against biological males.

This is consistent with Title IX, which we know was created to protect women’s sports opportunities, and the Equal Protection Clause. “We hold that the states may maintain women’s and girls’ sports for biological females.” So, big wins, as we expected here, for West Virginia and Idaho, and a recognition that there are differences in sports — when you give a slot to someone, it costs someone else. And in this case, they say women and girls should be protected from that if these states choose to do so; they have a right to do so.

“Can I ask a question? I’m sorry if it’s a dumb question — you know that’s sometimes my specialty. Does that mean — I know what that means for Idaho and West Virginia, but let’s take another state that wants to go in a different direction. Is it saying that the states get to decide, or is it saying essentially ‘go ahead?'” asked Perino.

“Yeah, I mean, essentially, it sounds like — what I’ve read of this so far — these states have the right to protect that interest. I have to keep reading to see if it goes broader than that, but the question here was whether West Virginia and Idaho could do this, not whether you could stop other states from deciding differently. So we’ll continue to parse this, but it seems for many states — at least two dozen or so who’ve done something similar to West Virginia and Idaho — that they have good legal standing to maintain those laws where they’ve passed them, similar to these,” Bream explained.

This is a developing story and will be updated.

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