SCOTUS Conservatives Kick Trans Kids For Sport
A lecture on protecting female athletes is a bit much from the anti-woke crowd openly gunning for Title IX.
On its way out the door on Tuesday, the Supreme Court’s six conservatives made time to deliver a performative kick to the handful of trans kids participating in K-12 athletics. In West Virginia v. B.P.J., the right-wing majority held that broadly prohibiting children from participating in youth sports does not violate the Equal Protection Clause of the Fourteenth Amendment.
The majority opinion, penned by Justice Brett Kavanaugh, is a gift to right-wing culture warriors trying desperately to cling to power by showing how cruel they can be to trans kids, blithely regurgitating disproven talking points about protecting girls from the imagined scourge of “biological males.” And Justice Clarence Thomas’s concurrence is so needlessly vile that we can’t eve bring ourselves to quote from it.
Culture warriors in robes
In 2021, West Virginia passed the “Save Women’s Sports Act,” codified at West Virginia Code § 18–2–25d. It defines male and female with respect to the “biological sex determined at birth,” notwithstanding the fact that for a significant number of children, it’s impossible to determine their sex at birth.
On its way out the door on Tuesday, the Supreme Court’s six conservatives made time to deliver a performative kick to the handful of trans kids participating in K-12 athletics. In West Virginia v. B.P.J., the right-wing majority held that broadly prohibiting children from participating in youth sports does not violate the Equal Protection Clause of the Fourteenth Amendment.
The majority opinion, penned by Justice Brett Kavanaugh, is a gift to right-wing culture warriors trying desperately to cling to power by showing how cruel they can be to trans kids, blithely regurgitating disproven talking points about protecting girls from the imagined scourge of “biological males.” And Justice Clarence Thomas’s concurrence is so needlessly vile that we can’t eve bring ourselves to quote from it.
Culture warriors in robes
In 2021, West Virginia passed the “Save Women’s Sports Act,” codified at West Virginia Code § 18–2–25d. It defines male and female with respect to the “biological sex determined at birth,” notwithstanding the fact that for a significant number of children, it’s impossible to determine their sex at birth.
Based on a legislative finding that “Classification of teams according to biological sex is necessary to promote equal athletic opportunities for the female sex,” the law requires the state to designate all “interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by any public secondary school or a state institution of higher education” — essentially all youth sports teams and clubs in the state — as either boys-only, girls-only, or coed. For any team the state designates as girls-only, § 18–2–25d(c)(2) then mandates that it “shall not be open to students of the male sex,” i.e., any child assigned male at birth, regardless of whether that child transitions to female later in life.
In 2021, there was exactly one child in all of West Virginia who was assigned male at birth and who wanted to play girls’ youth sports: Becky Pepper-Jackson, an eleven-year-old girl who had been diagnosed with gender dysphoria when she was nine. (We would not normally name a minor plaintiff, but Pepper-Jackson and her mother have been vocal public advocates for trans rights.)
Becky was about to graduate from the fifth grade and was looking forward to running cross-country in middle school when the principal informed her mother that she was ineligible to even try out for the team thanks to the new law.
Much has been made of trans girls “taking” spots from cisgender girls. But that’s never been the reality for virtually all youth sports. As Justice Sotomayor notes in her dissent, “everyone who eventually tried out for the girls’ cross-country team made it, meaning there were no ‘cuts,’” and therefore no “opportunities” that any other little girls who wanted to run around outside could have possibly lost out on.
The Idaho case with which this case was consolidated, Little v. Hecox, strained even further to invent a crisis. In that case, college student Lindsay Hecox briefly played for her school’s club soccer team, and tried out for — but did not make — Boise State’s Division I track and cross-country teams.
Equal Protection?
Pepper-Jackson sued, and the Fourth Circuit ruled in 2024 that West Virginia law violated the Constitution. Specifically, the Equal Protection clause of the Fourteenth Amendment, which provides that no state “shall deny to any person within its jurisdiction the equal protection of the laws.”
Due to “our long and unfortunate history of sex discrimination,” the Fourteenth Amendment subjects any state law that differentiates on the basis of sex to heightened scrutiny, meaning that the state must provide an “exceedingly persuasive justification” that the challenged law serves important governmental objectives and that the means employed are substantially related to the achievement of those objectives. That standard sits in between strict scrutiny, in which laws are rarely upheld, and rational basis scrutiny, in which laws are generally permitted.
Here, there is no dispute that West Virginia’s law openly discriminates on the basis of sex. Cisgender girls who were assigned female at birth can play on girls’ teams; transgender girls who were assigned male at birth cannot. The only difference is sex, and so the law must meet the heightened standard the Fourteenth Amendment requires.
The majority asserts that the “important” governmental objectives served by West Virginia’s law are to prevent (1) a “significant risk of sometimes severe injuries” and (2) a “significant competitive disadvantage” for cis girls. In doing so, the majority relies on the tired (and wrong) trope that trans girls “possess inherent physical advantages in sports — in height, weight, strength, speed, jumping ability, and the like” compared to their cis counterparts.
That’s not true, and it’s especially not true for plaintiffs like Pepper-Jackson, who started puberty blockers at age ten and began taking female hormone therapy treatments at age twelve.
Unable to muster scientific evidence, the six conservative justices proudly touted a policy statement issued by the International Olympic Committee just three months ago (after briefing and oral argument in these cases and thus not a part of the record). The majority also cites policy positions taken by the National Collegiate Athletic Association (NCAA) and the US Olympic & Paralympic Committee banning trans athletes — without pointing out that those bodies changed their positions only after President Trump issued an executive order threatening to take away federal funding from any organization that didn’t exclude trans athletes.
In other words: West Virginia (and the Supreme Court) mustered precious little evidence that cisgender girls need protection to play middle-school sports. But even if the state had shown an important government objective, it still fell far short of the Equal Protection Clause’s second requirement to prove that the law’s requirements were “substantially related” to achieving that objective. At most, the IOC’s statement shows that — in its words — excluding trans women helps ensure “equal access to elite sport” in “an Olympic context.”
West Virginia’s law isn’t confined to the Olympics, and does not merely apply to “elite sport.” It applies to middle-school cross-country teams that give out participation trophies to everyone who shows up. It applies to intramural and club teams.
Critically, West Virginia’s “Save Women’s Sports Act” did not occur in a vacuum. Rather, it replaced a prior law that allowed schools to conduct a case-by-case assessment of each transgender student wishing to participate on teams matching their gender. School officials would then approve those applications only if they determined that inclusion would not impact “fair competition” by cisgender girls in the sport.
Moreover, the predecessor statute allowed opposing schools in organized athletic contests to file a formal protest of any trans student’s participation by appealing the determination to the West Virginia Secondary Schools Athletic Commission’s Board of Directors. The Board was then required by law to assess whether allowing the student to play “would adversely affect competitive equity or safety of teammates or opposing players.”
When the West Virginia legislature changed that law from a case-by-case analysis to a blanket ban on trans girls, it cited absolutely no evidence — because there were no competitive trans girls playing competitive high school sports when this law was passed! — that the previous case-by-case approach was insufficient. And that failure, by itself, should have been enough for the Supreme Court to strike down this law. The Equal Protection clause demands more.
Skrmetti ascendant, Bostock descendant
This decision reinforces once again that the Supreme Court’s six right-wing justices have now fully joined the culture wars in the Age of Trump. Prior to 2025, the only decision to come out of the Supreme Court involving trans rights was 2020’s Bostock v. Clayton County, in which Justice Neil Gorsuch, writing for a 6-3 majority, held that Title VII’s prohibition on discrimination “because of sex” necessarily protects sexual orientation and gender identity.
Gorsuch’s reasoning (back then) was straightforward: “When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”
Pepper-Jackson argued that the logic of Bostock, which prohibited discrimination “because of sex,” should apply equally to Title IX of the Education Amendments of 1972, which prohibits discrimination “on the basis of sex.” Those two phrases certainly seem synonymous.
“We disagree,” scoffed the majority, claiming that Title VII and Title IV have “vastly different” factual contexts — one “concerns employment” whereas Title IX “focuses on sports.” That’s true, as far as it goes. But when the opinion claims that the language of the two statutes themselves are “vastly different,” that pushes credulity past the breaking point.
The Supreme Court’s decision last year in US v. Skrmetti in 2025 signaled that the conservative justices were, and are, happy to stigmatize trans people and exclude them from full participation in American society. In that case, the Supreme Court upheld Tennessee’s ban on gender-affirming care for minors, ruling that transgender status is not a protected class and thus laws targeting trans kids only have to satisfy rational basis scrutiny. Ominously, Justice Gorsuch, who is desperate to memory hole his prior holding in Bostock, voted with that anti-trans majority in that case after remaining uncharacteristically silent during oral argument.
Today, Gorsuch is silent no more. He penned a lengthy concurrence in B.P.J. explaining that Bostock’s prohibition on discrimination “because of sex” under Title VII is totally different from discrimination “on the basis of sex” under Title IX:
Put simply, it is a mistake to assume that, just because firing someone in part because of his biological sex amounts to unlawful discrimination in violation of Title VII, sponsoring a single-sex sports team limited to [cisgender] women or girls must also amount to unlawful discrimination in violation of Title IX.
The majority cites Skrmetti eight times in its analysis of the Equal Protection clause, even though Skrmetti involved rational basis review, not heightened scrutiny. Ordinarily, that kind of shoddy legal analysis would get you laughed out of any court, let alone the Supreme Court. But this Supreme Court has utterly abandoned the pretense that it is doing real law. They have the power, and the intend to use it to reshape American society to suit their own, rightwing preferences.
And now they’ve wandered off to spend the summer with their wealthy donors, blissfully free from the fallout of what they’ve unleashed.