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On the last day of the term on Tuesday, the Supreme Court issued about transgender students playing school sports. As expected, the court held that neither Title IX nor the equal protection clause protect a right of transgender students to play sports on the team that matches their gender identity. More surprisingly, and more troublingly, Justice Brett Kavanaugh’s opinion for the court sets one of Justice Ruth Bader Ginsburg’s most famous opinions squarely in his crosshairs.
The opinion in question is United States v. Virginia, a 30-year-old case also arising from another fight about schools. At the time, the Virginia Military Institute did not admit women. VMI is a state-funded military college—it is not one of the service academies like West Point, but is run more like a service academy than like most other undergraduate colleges, and a majority of its students join the military after graduation. As part of this educational philosophy, cadets (not freshmen!) learn through an adversative model, meaning spartan living conditions, extreme physical challenges, and an infamous “rat line” culture somewhere between boot camp and hazing that all first-year students undergo. When VMI’s refusal to admit women was challenged under the equal protection clause, Virginia argued that women were ill-suited for this adversative education and offered a completely different school—the Virginia Women’s Institute for Leadership—as a friendlier, more supportive environment instead.
When the challenge reached the Supreme Court, Ginsburg held that VMI’s policy violated the constitutional rights of women. Notably, this was not because lots of women wanted to attend VMI. Ginsburg explicitly said it “may be assumed” that most women did not want to go through the adversative model of VMI. Only some women wanted to attend and could meet all of the physical requirements of VMI. But for that potentially small number of women, a complete exclusion from VMI was unconstitutional.
The only trans student-athlete seeking a right to play sports at her public school, known as B.P.J. in the court documents, was in a similar position. She wanted to participate on her school’s track and field team even though West Virginia wanted to exclude her. West Virginia said it needed to prevent transgender girls from playing on girls’ teams because letting trans girls play against cisgender girls might be dangerous or unfair for the cisgender girls. This logic is based on the possibility that a transgender girl might have gone through part or all of puberty that would on average make her larger and potentially stronger than a cisgender girl.
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B.P.J. didn’t challenge these concerns or argue that no transgender girl could ever be barred from playing on a girls’ team. Instead, she made an argument that was analogous to the VMI plaintiffs’. The VMI plaintiffs argued that even if a generalization that most women couldn’t make it through VMI was right, they were an exception that meant the blanket exclusion violated their rights. Similarly, B.P.J. argued that even if a generalization that some transgender girls playing on girls’ teams was unfair or unsafe was correct, she was an exception that meant that a blanket exclusion violated her rights. The reason behind treating her differently was that she had begun gender-affirming care that included both puberty blockers and hormone therapy starting when she was 10 years old. She had never undergone male puberty, so West Virginia’s reasons simply didn’t apply to her.
Kavanaugh not only rejected this comparison in the context of transgender girls, but also went out of his way to undermine Ginsburg’s logic about women. He cited Ginsburg as the support for his conclusion that “this Court’s equal protection precedents allow general classifications like those made in the West Virginia and Idaho laws so long as there is at least a substantial relationship between the classification and the State’s interests.”
But this is the exact opposite of what Ginsburg wrote. Justice Ginsburg held that because there were some women who were an exception to Virginia’s rule, there was no substantial relationship between the classification excluding women and the state’s interest in preserving the adversative model of education at VMI. Justice Kavanaugh, by contrast, wrote that even if B.P.J. was correct that “at least some” transgender girls have no biological advantages over cisgender girls, the law was still constitutional because there was enough of a relationship between the law’s exclusion and the state’s interests in fair and safe athletic competitions. If this logic had been applied to VMI, the school would have won.
And it is this logic that signals a turn for women’s constitutional rights. If states can legislate based on what most (but not all) women are like, then they are free to pass laws based on “overbroad generalizations” about men and women that Ginsburg said were unconstitutional. The court’s decision firmly closes the door to transgender student-athletes. But the decision also leaves a door wide open to a path erasing constitutional protection for women. In a world in which the president called the SAVE Act, which would make it harder for millions of American women to vote, “desperately needed,” that open doorway should scare us all.
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