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The Supreme Court ruled on Tuesday against two transgender students who wanted to play sports with teams that aligned with their gender identity. Led by girls’ basketball coach, baseball fan, and occasional swing Justice Brett Kavanaugh, the majority opinion is filled with poetic homages to the greatness of American sports, a pastime so important that Kavanaugh clearly feels it can’t be sullied by the presence of even a single trans student athlete in an entire state. More than that, the court takes the opportunity to weaken sex discrimination principles across the law, all the while giving short shrift to the health of kids all over the country.
B.P.J. was a transgender student in the West Virginia public school system. Originally assigned male at birth, B.P.J., like over 1 million other kids throughout the country, discovered that she better identified as a girl. B.P.J.’s parents supported her transition across her home and school life. She began taking puberty blockers around elementary school and hormones in sixth grade. In 2021 West Virginia passed a law that banned all transgender girls from playing on girls’ sports teams. After B.P.J.’s middle school relied on this law to block her from playing sports, B.P.J. sued under civil rights law Title IX and the 14th Amendment. B.P.J. was allowed to participate in sports as the case went on, leading her to join the girls’ cross-country and track-and-field teams. In addition to the medical treatment she received, B.P.J. found that participation in sports played an essential role in her well-being. As her mother explained, B.P.J. “is the happiest I have ever seen her when she is accepted for who she is and able to participate in school sports.”
To see what happens when a student is not accepted for who they are, look no further than the other plaintiff in Tuesday’s case: L.H. Like B.P.J., L.H. was a trans woman student athlete. Unlike B.P.J., L.H.’s name was not anonymized in court documents. L.H. briefly tried out for the women’s club soccer, track, and cross-country teams at Boise State University, before Idaho passed a similar law banning trans women from sports. After filing her suit, L.H. was subject to ongoing harassment for being trans. She had to temporarily drop out of college due to personal and financial struggles. Because of the harassment, L.H. eventually stopped trying to play any organized sports whatsoever and issued a sworn declaration in the lower courts that she would not try out for sports teams in the future. These statements should have been enough to declare her case moot, which was L.H.’s goal, as she sought to get her case out of the public eye and minimize the discrimination she was suffering.
But even though the court did not need L.H.’s lawsuit to keep the case alive (given the presence of high schooler B.P.J.’s admittedly live dispute), the court lumped the two cases together anyway en route to ruling against trans kids. On the statutory question, it held that Title IX’s provisions, particularly the Javits Amendment, which concerns school sports, did not require schools to make reasonable accommodations for trans students. On the constitutional question, the Supreme Court majority, on a 6–3 ideological basis, found that the state had the authority to weigh the balance of interests between “safety” and “fairness” in favor of creating a categorical rule banning all trans student athletes.
It’s important to appreciate that the students pressed for the narrowest, most modest ruling possible. They did not ask the court to find that the entire system of separate boys’ and girls’ sports was unlawful discrimination. They didn’t even ask the court to require states to permit all trans athletes to participate in the sports team of their choosing. All they asked for was for their school to make an individualized assessment as to whether they could fairly play with their friends and classmates given their specific medical circumstance. And their case was especially strong, since B.P.J.’s near decade of hormone use had minimized if not outright eliminated any biological advantage a school might believe she had from being born a biological male. But the court couldn’t give them even this, as Kavanaugh’s opinion showed extreme deference toward right-wing states’ ability to treat physical differences as “enduring” with no room for exceptions.
This deference is warranted, the justice argues, because of just how supremely important sports are to the development of young people. In several places, the opinion slips into a love letter to competition, going on and on about the “extraordinary time and effort” girls take “to get a little faster, to become a little stronger, to jump a little higher.” Kavanaugh’s writing reads like an unreleased script of Friday Night Lights. But as important as sports and competition are, Kavanaugh asserts, they are also “zero sum,” so allowing transgender girls a spot on the team risks taking a spot on a roster from what he sees as a more deserving cisgender girl.
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Ultimately, while he seeks to protect young girls, Kavanaugh actually coddles them. He argues that West Virginia’s ban is necessary for safety because of the physicality of contact sports, even as B.P.J. was doing nothing more than throwing a shot put on a field or running with her classmates. And more to the point, physical differences between athletes are an inherent part of sports. You don’t think 7-foot-4 NBA superstar Victor Wembanyama has biological differences from 6-foot-2 New York Knicks icon Jalen Brunson? But these differences are exactly what make the latter’s victory in the championship all the more sweet. And in any event, the typical differences among players pale in comparison to the relatively small differences between a cis student athlete and a trans student athlete who has receiving hormone therapy for years.
Kavanaugh’s opinion blows by these differences with an irritating air of judicial modesty. He cites Chief Justice John Roberts’$2 2025 opinion allowing states to ban medical care for trans minors, noting that the “calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility,” meaning that courts should be careful before “swooping in and invalidating laws.” Never mind that on the very same day as this case was decided, Kavanaugh himself wrote a different constitutional opinion for the court that overturned precedent and invalidated a campaign finance law. Apparently letting the “political branches” decide controversial issues doesn’t apply to stopping super PACS from dumping millions into politicians’ campaigns.
As Justice Sonia Sotomayor explains, the court’s constitutional precedents here required it to at least send the case back for more fact-finding as to whether B.P.J. can demonstrate that she belongs in a small yet reasonable class of people who deserve exemptions from her state’s ban. After all, the entire project of sex-based scrutiny that the court has applied for decades is all about determining whether the government may discriminate against a particular subclass based on general assumptions about the group as a whole. The majority rejects this precedent, and in doing so, the court flips upside down the late Justice Ruth Bader Ginsburg’s most consequential decision striking down the male-only admission policy at a Virginia military school.
The debate over the appropriate sex-discrimination standard previews the next battleground of litigation in this space. West Virginia is one of 27 states to ban or restrict transgender sports. But in blue states, conservative parents have begun to pursue the opposite claims as B.P.J., arguing that their cisgender kids have a constitutional right to exclude trans students from school sports. Just as B.P.J. and L.H. unsuccessfully tried to wield the 14th Amendment as a shield from discrimination, conservative Christian parents are already trying to use equal protection as a sword. As the court ominously notes, Justices Samuel Alito, Amy Coney Barrett, and Clarence Thomas seem to agree with the related argument that laws that discriminate on the basis of transgender status deserve the most lenient judicial scrutiny. (Thomas, seen yesterday chuckling as he strolled down the House GOP chambers, wrote a concurrence blessing the worst of the right-wing legislators’ most transphobic instincts. His two-page concurrence is so vile that it’s not worth any more commentary than this parenthetical.)
When Kavanaugh was nominated to the Supreme Court, one unexpected group of people issued a public statement in support: parents who shared a school with Kavanaugh’s daughters. Coach Kavanaugh was a committed member of his daughters’ sports teams, and that spoke positively to his character in the midst of the serious allegations during his contentious nomination. The justice’s logic in B.P.J. seems to come straight out of this competitive experience, coupled with a set of equally competitive and frankly hypermasculine American values that fuel the court’s undercutting of sex-discrimination precedent. Once a quirky background detail that played an outsized role in his nomination, Kavanaugh’s extracurricular interests have now been elevated by the Supreme Court into a legal fixture of constitutional law.
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