Today The Supreme Court Ruled 6-3 That States Can Ban Transgender Girls From Girls' Sports: Here's What Happened and What This Decision Actually Means.

The purpose of this post is to simply report on today’s SCOTUS decision.

In this case the states won, and the two transgender athletes who sued lost. By a vote of six to three, the Supreme Court ruled that schools can limit girls’ and women’s sports teams to biological females, and that doing so breaks neither Title IX nor the Constitution. Justice Kavanaugh wrote the opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Barrett.

The Court decided this on both grounds, the federal statute known as Title IX and the Equal Protection Clause of the Fourteenth Amendment. That dual ruling matters, because the constitutional half cannot be undone by ordinary legislation. Congress could in theory rewrite the Title IX side, but that is a heavy lift, and lower courts are bound by both.

Here is the part most people will miss. On the Title IX question, all nine justices, including the three who dissented, agreed that B.P.J.’s claim failed. The six to three split is on the constitutional question. And the three dissenters did not say the athletes should win. They said the case was not ready to decide and should go back for more fact finding. You can read the full decision here.¹

What happens now is simple. The two lower court rulings that had sided with the athletes are reversed, the West Virginia and Idaho laws stand, and the laws in 27 states that limit female sports to biological females are now on rock-solid legal footing. But there’s more that’s still unsettled. Keep reading.

What This Means

Let me put this in plain terms. Before this ruling, the law was a patchwork and a question mark. Title IX, passed in 1972, banned sex discrimination in schools that take federal money, and two years later the Javits Amendment told the government to write sports rules. The rules it wrote in 1975 let schools run separate teams for each sex. That has been the deal for about 50 years. What was never settled was this newer fight.

When a state bans all transgender girls from girls’ teams, does that break Title IX or the Constitution? Lower courts had gone both ways. The Fourth Circuit had sided with B.P.J. The Ninth Circuit had sided with Hecox. Today the Supreme Court ended that split and said no, those bans are legal.

Who is affected. If you live in one of the 27 states with one of these laws, that law now stands, full stop. If you are a parent of a transgender girl who wants to play on a girls’ team in those states, the answer from the courts is no, and the Court said it does not matter whether your child took puberty blockers or hormones, and it does not matter whether your child would actually take anyone’s roster spot. The Court refused to make schools do an athlete-by-athlete review. If you are a parent of a girl who plays sports, the Court said the states’ interest in safety and fair competition justifies these lines.

What changed. The big legal move is the Court used what is called intermediate scrutiny, which is the test for any law that sorts people by sex. To pass, a sex-based law has to be substantially related to an important government goal. The Court held that safety and competitive fairness are important goals, and that limiting girls’ teams to biological females is substantially related to them. That is now the controlling rule of the land.

What stayed the same. Schools can still run separate boys’ and girls’ teams. That was never in doubt and is not changed. And the Court was careful to say this is about sports and sports only.

Who is not affected, and this matters. The Court explicitly did not decide whether a state is allowed to let transgender girls play if it wants to. It only decided that a state can ban them. So a state that chooses inclusion is in different legal territory that the Court left for another day.

The Court also said it was not deciding anything about biological females, which includes transgender boys, playing on boys’ or co-ed teams. And this ruling does not touch bathrooms, locker rooms, or which classes a kid can take. The majority kept saying the words “in the sports context” over and over, and that was on purpose.

Loose Ends and Open Questions

Here is where it gets messy and there are a few hard practical problems. The Court drew a clean line on paper, biological sex, and it did that partly because the alternative looked impossible to administer. The justices openly said that asking judges to measure each transgender athlete’s hormone levels and compare them to other athletes would be an almost impossible task. So the line is clean, but it is clean by avoiding the hard cases, not by solving them.

A kid like B.P.J., who socially transitioned in third grade, never went through male puberty, took blockers and then estrogen, and competed for years, gets treated exactly the same as a boy who decided to try out yesterday. The dissent hammered this. Whether you think that is fair or not, it is going to confuse a lot of families who assumed the medical details would matter. They do not.

There was also a fight over whether one of these cases should even have been decided. The Idaho athlete, Hecox, swore she had stopped playing and would never again play a sport covered by the ban. The dissent said that made her case moot and the Court should have dismissed it. The majority disagreed and decided it anyway. So the two sides did not even agree on whether half of this ruling belonged in front of the Court.

The holding, the part that is binding law is as follows: States may limit girls’ and women’s sports to biological females. That is true under both Title IX and the Equal Protection Clause. States do not have to carve out exceptions for individual athletes. That is settled. Done.

The dicta and the reserved questions, the parts the Court deliberately left open have left the door wide open for more fights, and the Court told you so in its own words.

First, look at footnote 1 of the majority opinion. It sits at the bottom of page 3, right where the Court writes “The answer is yes.” The Court says these cases “do not present the distinct question of whether” schools “may allow” transgender girls to play, that the question “is currently the subject of litigation in some lower courts,” and that “Nothing in this opinion is intended to decide that question.” Translation. The Court said states can ban. It did not say whether states can include. That fight is live right now.

Second, on page 23, the Court wrote that it “need not definitively resolve whether rational basis review or intermediate scrutiny applies to transgender classifications.” Translation. The most important question in every future transgender rights case, which legal test courts must use, the Court ducked. Justice Thomas, in his concurrence, wants the weakest test, rational basis. The majority refused to pick. That is a loaded gun sitting on the table for the next case.

Third, the meaning of the word “sex” in Title IX outside of sports is genuinely unsettled, and the justices are openly fighting about it. The majority wrote, on page 10, that “sex” in Title IX “cannot plausibly be interpreted to refer to anything other than biological sex.” That is sweeping language.

But the majority also tied almost every sentence to “the sports context.” Justice Jackson, writing separately, called that broad line wrong and argued that “sex” in Title IX may reach further than biological sex. And Justice Sotomayor, joined by Justice Kagan and Justice Jackson, listed the many places Title IX still bites outside of sports, things like mandatory sex-segregated classes, chess club, theater, student government, and on-campus harassment. All three dissenters agree the majority went further than it needed to when it defined “sex.”

So is the broad statement real law or just words? On the sports result, it is settled. On what “sex” means everywhere else, the Court left the door open, and the dissenters are already pushing on it. So when all is said and done, the sports ban is settled. Almost everything around it is not.

Five Questions That Still Need Answers

1. Can a state on the other side of this issue still choose to let transgender girls play? Your kid’s options may depend entirely on which state you live in, and the courts have not answered this yet.

2. What legal test will courts use the next time a transgender rights case shows up that is not about sports? The Court refused to decide, which means the rules for jobs, healthcare, and schools are still up for grabs.

3. Does “sex” in federal law mean biological sex everywhere, or just on the playing field? The dissenters say the door is wide open, and that answer will shape a lot more than gym class.

4. What about biological females, including transgender boys, who want to play on boys’ or co-ed teams? The Court said it was not deciding that. So an entire group of kids is still in legal limbo.

5. Does the scientific evidence ever actually get its day in court? The Court said even if transgender girls have no athletic advantage at all, the law still wins. So if the facts can’t change the outcome, when, if ever, do the facts matter?

What do you think?

Mitch Jackson, Esq.

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1. West Virginia v. B. P. J. (24-43)