Last week, the U.S. Supreme Court upheld West Virginia’s “Save Women’s Sports Act” and Idaho’s “Fairness in Women’s Sports Act,” which prohibit transgender women and girls from participating on women’s and girls’ school sports teams. The Court rejected arguments that bans on transgender student-athletes’ participation violate Title IX and/or the federal constitutional guarantee of Equal Protection. This result was devastating for plaintiffs Becky Pepper-Jackson and Lindsay Hecox, and for other transgender girls and women striving to play school sports in the 27 states that have passed similarly restrictive laws.
As an advocate for trans rights in California specifically, I breathed a sigh of relief at the SCOTUS opinion’s footnote explaining it does not impact state laws that protect trans girls’ participation, like the School Success and Opportunity Act that has supported equal opportunity for transgender student-athletes in the Golden State since 2014. I’m also glad the Court took a narrow approach and didn’t address trans plaintiffs’ ability to pursue other kinds of Title IX or constitutional claims.
Meanwhile I’m angry about how this decision, like the exclusionary policies it upholds, elides trans athlete perspectives without actually “saving” anyone from the real challenges facing women’s athletics.
Writing for the Supreme Court majority, Justice Kavanaugh highlighted the “zero sum” nature of sports, including the fact that “every competitor who wins a race or competition deprives another athlete of that victory, or medal, or prize.” This passage purports to answer the question of why it’s harmful to let a girl play who happens to be trans. But it does no such thing.
Trans athletes like Lindsay and Becky play sports for the exact same reasons their peers do—to get exercise and build skills while also having fun and feeling included on a team. And all of us who enjoy playing or even watching sports know that there are always winners and losers. Sometimes that includes losing to an athlete who is significantly bigger, stronger, and/or faster. Other times, it means losing to an athlete who is significantly smaller, nimbler, and/or more graceful.
Differences from athlete to athlete stem partly from variations in their bodies and “natural” skill levels, but also involve myriad other “fairness issues,” such as some competitors’ ability to afford access to fancier training equipment and facilities, and others’ greater struggle to focus in practice while stressed about money, immigration status, and other family challenges. How to win and lose graciously amid all these dynamics are among the central lessons children learn from athletic endeavors. Parents and coaches normally help young athletes process their frustrations and move on to preparing for the next competition. But the Court here blesses the presumption that a trans woman competitor is always unfairly depriving others of victory, and encourages other athletes to decry and attack her presence rather than square up against her in good faith.
Safety issues are present, serious, and even pervasive in the world of girls’ and women’s sports. But banning trans athletes’ participation does nothing to address the bullying, threats, physical violence, and sexual abuse athletes at every level continue to endure at the hands of coaches, doctors and other team staff, and “fans.” Genuine fairness issues also continue to plague women’s sports, including inequities between school athletic programs for men and boys versus those for girls and women. Addressing those imbalances will require greater investment, both in the women’s sports programs themselves and in enforcement of Title IX.
But rather than take constructive steps in that direction, the current federal administration has chosen to slash the Department of Education’s Office of Civil Rights and direct many of the remaining resources to attacks on trans student-athletes. And now questions loom about how states like West Virginia and Idaho will implement their bans, including whether invasive “gender verification” will be required of all participants in girls’ sports or selectively demanded from athletes who are Black, non-conforming in their gender expression, or otherwise targets of additional scrutiny.
Justice Kavanaugh noted that “[n]o student-athlete…deserves to be ostracized or vilified,” including those who are transgender. On that point he was right. But the comment rings hollow in the context of a decision that treats transness alone as a legitimate reason to lock a girl out of eligibility for every school sports team in her state, without any evidence that she has a competitive advantage.
Kavanaugh also waxed poetic about how “lessons and experiences in sports have empowered millions of American women who have gone on to thrive in all aspects of American life”—but did so right in the act of denying those lessons and experiences, and the resulting empowerment, to a subset of girls and women who are currently dealing with a dizzying onslaught of attacks on their medically necessary health care, accurate identification, safe bathroom usage, and much more.
Trans girls and women collectively—like other marginalized and stigmatized communities—are in serious need of opportunities to build confidence and supportive relationships with peers and mentors. But in the wake of the Supreme Court’s misguided decision, even in high-equality states like California, it’s going to take a lot of work to defend trans students’ access to the many such opportunities sports naturally afford.
