How right-wing anti-transgender attacks led to a Supreme Court ruling upholding sex discrimination
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On the surface, the Supreme Court’s June 30 opinion upholding state laws barring transgender girls from women’s and girl’s sports teams looks like a victory for women’s rights.
The 6-3 opinion by Justice Brett M. Kavanaugh certainly presents itself that way. “Females and males have inherent physical differences relevant to athletic performance,” Kavanaugh wrote. “Therefore, in contact sports, forcing female athletes to compete against males can create significant safety risks.” He also asserted that “forcing female athletes to compete against males can undermine competitive fairness.”
The ruling applied to prohibitions enacted in Idaho and West Virginia against “biological” males’ participation on women’s teams in public schools. Federal judges in both states overturned the bans. The Supreme Court majority restored them. The ruling essentially upholds similar bans enacted in 25 other states.
There was no record of any transgender person participating in school sports in the State, let alone any ‘problem’ with transgender students ... creating unfair competition or unsafe conditions.
— Justice Sonia Sotomayor, demolishing the Supreme Court’s argument in favor of banning transgender girls from girl’s sports
Kavanaugh, like Donald Trump and others in the anti-transgender camp, maintained that one’s gender is an immutable fact of life, established even before birth.
Anything else, Trump stated in an executive order he issued on inauguration day 2025, could only be the product of “gender ideology extremism.” The U.S., his order stated, recognizes “two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality.” That’s a “biological truth,” he declared.
In his own version of this overconfident and factually insupportable conclusion, Kavanaugh wrote: “As all agree, females and males have inherent physical differences relevant to athletic performance.”
Science recognizes that some people are “born with sex traits that don’t fit into typical male or female patterns,” to cite a discussion on the Cleveland Clinic web page on the topic “intersex.” The condition “may involve chromosomes, hormones, reproductive organs or genitals.”
From a psychological standpoint, medical science recognizes “gender dysphoria” as a real condition often requiring counseling and medical intervention such as the use of puberty blockers and hormones to stave off the development of secondary sex characteristics until the condition can be resolved.
No one disputes that there are physical differences between the sexes. Few would dispute that on average or even at the median, males may be bigger and more powerful than females, or that in certain contact sports the difference may be telling and on occasion dangerous.
But that’s not the same as asserting that the physical differences between males and females invariably mean that men will invariably prevail over women in all competitions or that their participation will endanger women.
The International Olympic Committee — in a policy statement Kavanaugh cited incompletely — says that in “most running and swimming events,” males have a 10% to 12% advantage over women. That’s a range that would accommodate the full spectrum of outcomes — transgender females win, cisfemales win, they tie. (The “cis” prefix denotes those living consistent with their birth gender.)
West Virginia and Idaho addressed this ambiguity by banning transgender women from all girls’ teams. So under their rules transgender girls can’t play football or soccer with cisgirls. But what’s the argument in favor of banning them from the 100-yard dash, or cross-country track, or diving, or archery?
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But something else is going on here. The Supreme Court’s ruling was almost preordained, given the years-long campaign by conservatives to demonize transgender individuals as if they’re members of an alien species.
It will be recalled that during his presidential campaign, Trump spun a despicable fantasy in which children were kidnapped in school and secretly subjected to sex-change operations.
Trump’s executive order wiped out policies aimed at protecting transgender adults from discrimination. He moved to outlaw gender-affirming medical therapies for anyone under 19 by cutting off federal funding for healthcare institutions that provide such care.
He banned transgender individuals from serving in the military and ordered federal prison officials to move transgender inmates into the general populations consistent with their birth genders, which exposes them to physical assault. (Federal Judge Royce Lamberth of Washington, D.C., has blocked the government from transferring three transgender women into the male prison population or terminating their hormone treatments.)
I wrote during Trump’s first term, when his anti-transgender policies were still gestating, that the goal was to show that “one can target any community, as long as it doesn’t have a strong political voice or political power. These are the actions of bullies and cowards, pretending to be strong.”
Last year, the Supreme Court struck its first blow against transgender rights by upholding a Tennessee law banning transgender care, including puberty blockers and hormone therapy, for minors. Similar laws have been enacted in 25 other states. The majority in that ruling by Chief Justice John G. Roberts Jr. was identical to the one in the June 30 ruling — Roberts, Kavanaugh, and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett.
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Who are the targets of this ideological campaign? They number only about 1.6 million U.S. adults, or one-half of 1% of the U.S. population. About 300,000 adolescents ages 13 to 17, or 1.4%, identify as transgender, according to a study by UCLA School of Law.
In West Virginia, as Justice Sonia Sotomayor observed in her dissenting opinion, “there was no record of any transgender person participating in school sports in the State, let along any ‘problem’ with transgender students ... creating unfair competition or unsafe conditions.”
In endorsing the flat bans directed at transgender women in Idaho and West Virginia, Kavanaugh argued that any attempt to implement case-by-case judgments of students’ requests to join sports teams inconsistent with their biological gender would create “an enormous practical and administrability problem.”
Is that so? That wasn’t the case in Maine, where the annual K-12 population is more than 170,000. There, a committee was charged with determining whether a student’s participation in a sport consistent with their gender identity but inconsistent with their biological sex would “result in an unfair athletic advantage” or present a risk of injury to others. The committee held 56 hearings from 2013 through 2021, or an average of seven per year. During the entire time span, only four involved transgender girls. (The outcome of those hearings couldn’t be learned.)
It was Maine’s policy, one might recall, that provoked a confrontation between Trump and Maine Gov. Janet Mills at the White House last year, when Trump threatened to withhold federal funding from the state unless it barred transgender students from competing on women’s sports teams. “We’ll see you in court,” Mills snapped.
Whether the Idaho and West Virginia laws genuinely protect girls from unfair competition is questionable. (The Idaho law is styled the “Fairness in Women’s Sports Act.”) In practice, the laws may subject women in public schools to “invasive sex verification procedures,” as educational expert George Theoharis of Syracuse University wrote after the court ruling.
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They’re also based on a retrograde view of women as fragile creatures needing men’s protection, Theoharis wrote — “the same logic that has historically been used to justify excluding women from making their own healthcare decisions and girls from rigorous math and science; that physically demanding work is simply beyond them.” (There don’t appear to be any state laws barring transgender women from competing in men’s sports.)
Becky Pepper-Jackson, the plaintiff in the West Virginia case, in which she is identified only as B.P.J., is the only transgender girl who sought to join girl’s teams — track and cross-country — in the state. That was in 2021, just after West Virginia passed its law and she was about to enter sixth grade. She didn’t appear to pose any competitive risk to others on the track and cross-country teams she applied to join — her lawyers told the Supreme Court that on those no-cut teams, she “came in near the back.”
Anyway, she had not gone through male puberty, which theoretically might have endowed her with a competitive advantage, because she had been taking puberty blockers and female hormones.
Thanks to the court’s ruling, Sotomayor observed in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, West Virginia can deny Becky access to school sports “because it thinks they have an inherent athletic advantage, even if the facts show that they do not.”
B.P.J., Sotomayor wrote, “cannot practice on girls’ teams, even if she would not take anyone’s spot in an eventual competition, even if everyone who tries out for the team makes it, and even if having the chance to participate could aid immensely in treating B. P. J.’s gender dysphoria.”
So whose interest was really protected by the Supreme Court?
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Ideas expressed in the piece
- The article contends that the Supreme Court’s June 30 ruling upholding Idaho and West Virginia laws that bar transgender girls and women from school sports teams is less a victory for women’s rights than an endorsement of sex discrimination, given that it allows categorical exclusion based solely on sex assigned at birth[2][5][7][11][12].
- The piece argues that the decision cements a broader conservative campaign to demonize transgender people, linking sports bans to a pattern of policies restricting gender-affirming medical care for minors, military service, and prison placement, and describing these measures as targeting a small, politically vulnerable population with limited institutional power.
- The article notes that medical science recognizes intersex variations and gender dysphoria, emphasizing that sex traits and gender identity are more complex than a rigid male/female binary and that blanket policies ignore these realities in favor of what the piece describes as “overconfident and factually insupportable” claims about immutable sex.
- The piece criticizes Justice Brett Kavanaugh’s focus on average physical differences between males and females, asserting that such generalizations do not prove that transgender girls and women pose inherent safety risks or always enjoy unfair advantages in every sport, especially in non-contact or skill-based disciplines.
- The article highlights that the International Olympic Committee acknowledges typical performance differences but also allows for a spectrum of outcomes, and it argues that using this data to justify universal bans misrepresents the underlying science and the IOC’s more nuanced approach to eligibility.
- The piece points to Maine’s experience with a case-by-case review process for student-athlete participation, describing how a small committee evaluated whether a student’s participation consistent with gender identity would create unfair advantage or safety risks, and uses this example to dispute Kavanaugh’s claim that individualized assessments are “an enormous” administrative burden.
- The article underscores that in West Virginia, there was no record of any transgender student competing in school sports when the law was passed, and it stresses Justice Sonia Sotomayor’s dissent, which argues that the state may now deny access to teams even when the specific athlete shows no advantage and participation could help treat gender dysphoria.
- The piece spotlights the case of Becky Pepper-Jackson (B.P.J.), a transgender middle-school runner who sought to join girls’ track and cross-country teams, describing how the ruling allows exclusion despite her no-cut teams, back-of-the-pack finishes, and use of puberty blockers and hormones, and questions whose interests are truly protected by such laws[1][2][7][12].
- The article warns that “fairness in women’s sports” laws can subject cisgender girls and women to invasive sex verification procedures, arguing that these measures rest on a retrograde view of women as fragile and in need of paternalistic protection—the same logic the piece says has historically been used to limit women’s autonomy in healthcare, academic fields, and physically demanding work.
- The piece concludes that the Court’s decision, backed by the same conservative majority that recently upheld bans on gender-affirming care for minors, is part of an “assault” on transgender rights driven more by ideology and political calculation than by evidence of real problems in school sports, and suggests that these rulings send a message that any marginalized group without strong political voice can be singled out as a target.
Different views on the topic
- Supporters of the ruling maintain that sex-segregated sports are expressly permitted under Title IX and that states are entitled to define eligibility by biological sex in order to preserve competitive fairness for girls and women, a view reflected in the Court’s conclusion that laws like Idaho’s and West Virginia’s do not violate federal civil-rights protections[5][7][8][12].
- The majority opinion states that inherent physical differences between males and females, especially in speed, strength, and endurance, justify reserving women’s and girls’ teams for athletes classified as female at birth, and warns that allowing transgender girls and women whose sex assigned at birth was male to compete could compromise both safety in contact sports and the integrity of female competition[7][8][5].
- Many backers of the bans argue that individualized, case-by-case assessments of transgender athletes’ physical characteristics are unworkable for schools, contending that bright-line rules based on sex assigned at birth give administrators and coaches clear standards and reduce the risk of litigation and inconsistent outcomes across districts[1][6][12].
- Advocacy groups and officials supporting restrictions emphasize that allowing transgender girls and women who have experienced male puberty or retain testosterone-related advantages to compete could displace cisgender female athletes from podiums, scholarships, and roster spots, framing their stance as a defense of equal opportunity for women and girls in sports[5][9][10][12].
- Some commentators who favor the Court’s approach describe the ruling as a reaffirmation of states’ rights and legislative authority in a contested scientific and cultural arena, arguing that where experts disagree and data are evolving, elected lawmakers—not courts or sports bodies—should draw lines about eligibility and define categories for school athletics[1][6][12].
- Public-opinion polling cited by education and news outlets shows that about six in ten U.S. adults support requiring transgender children and teenagers to compete only on teams matching their sex assigned at birth, and supporters of bans point to these findings as evidence that the new laws and the Court’s decision reflect prevailing societal views on fairness in youth sports[11].
- NCAA leadership has accepted the post-ruling landscape and implemented a policy limiting competition in women’s sports to students assigned female at birth, while allowing athletes assigned male at birth to practice with women’s teams and compete on men’s teams, presenting this framework as a way to safeguard women’s championships while still permitting transgender participation in men’s categories[3][4][12].
- In addition, national and international sports organizations, including the NCAA and the U.S. Olympic and Paralympic Committee, are cited by supporters as examples of bodies that have moved toward stricter sex-based eligibility rules, and these developments are used to argue that the Supreme Court’s decision is consistent with a wider trend toward protecting women’s sports through biological criteria[8][4][12].
