Games are different other parts of American life—treating men and women differently on the court or field is the same. That is the important point made by the judgment of the Supreme Court West Virginia vs. BPJ yesterday By a 6–3 margin, the justices upheld state laws defining men’s and women’s sports by biological sex rather than gender identity. In other words, nations cannot be forced to allow male athletes who identify as women to compete in women’s sports; lawmakers have a legitimate interest in preserving fair opportunities for female athletes.
In some ways, this is a narrower decision than the plaintiff’s supporters had feared. And it is easy to reconcile with the 2020 court decision Bostock vs. Clayton Countywhich held—in a major victory for LGBTQ rights—that employees cannot be fired for dressing or presenting themselves in ways that defy gender stereotypes.
As yesterday’s decision acknowledges, athletic competition raises issues that are not about employment or housing. Important federal civil rights law Title IX protects same-sex teams because male athletes are typically stronger than their female counterparts, and those athletes also deserve a chance to enjoy the benefits of athletic competition. Even the dissenting opinion of three liberal justices agrees that segregating sports by biological sex is not unlawful sex discrimination under Title IX.
Basically, the majority decision, by conservative Justice Brett Kavanaugh, puts the Court firmly in the American public’s opinion: Somewhere from 66 to 80 percent of Americans believe me that sports should be separated from sex, rather than gender identity. However, much of the online reaction to the case has been overwhelming, fueled by the demands of internal Democratic Party politics. Seth Moulton, a representative from Massachusetts who previously raised concerns that his own daughters could run against biological men and is now running in the Senate race, explained decision as a “deliberate act of cruelty” and part of a “deal to erase child crossings from public life and keep Americans divided.” The ACLU, which supported the plaintiff in West Virginia vs. BPJ, to be called is “destroying.” In recent years, LGBTQ advocates have pointed out any deviation from the statement that “trans women are women” – who should be treated the same as biological women in all cases – as aboriginal people or even genocide. Back in 2021, the ACLU’s most famous anti-human rights lawyer, Chase Strangio, he suggested that sexism in sports was tantamount to “eugenics” and that it was based on the “false” claim that men are naturally stronger than women.
These arguments are touched by the experiences of millions of Americans who love sports and understand that it is not just prejudice or outdated traditions that prevent Megan Rapinoe from playing competitive soccer with Folarin Balogun. The sports issue has weighed heavily on the broader LGBTQ movement, which has other battles to fight: against President Trump’s executive order to ban transgender people from the military, for example, or. red state laws which threatens criminal penalties for people who use bathrooms that match their gender identity. Technical sports concessions could ultimately benefit transgender Americans, by allowing activists to focus on winnable causes. It would also take some heat off an issue that has featured prominently in Trump’s 2024 campaign ads and liberal fundraising emails.
Unfortunately, though, the left is caught in a situation where sports integration is so immediate that it should be taken to the Supreme Court, but also “no problem” affect only a few students, whose opponents must therefore be motivated by hatred. Like center-left commentator Matthew Yglesias to put it“The conventional wisdom in Dem politics is that the issue of sports is at once so small and so important that you can’t compromise public opinion on it.”
In fact, trans-right advocacy groups have already made major concessions since the Joe Biden era, when the demand was that sports should be separated from self-proclaimed gender identity. Before the Supreme Court, attorneys for plaintiff Becky Pepper-Jackson, a track and field athlete in West Virginia, argued that only a small number of transgender girls who have never gone through male puberty should be included in women’s sports. (She took puberty blockers at 10 and cross-sex hormones at 12, according to the verdict.)
The unusual nature of the Pepper-Jackson case allowed the liberal justices to partially dissent, on the grounds that he deserved the chance to have lower courts through an “unresolved factual dispute” about the extent to which men’s athletic gains are reduced by the treatment. In contrast, Kavanaugh declares that making eligibility decisions on a case-by-case basis would be “an impossible task for a judge to perform equally.”
At oral argument, both sides presented well-regarded experts and studies supporting their case. One side argued that men’s athletic gains only begin at puberty; another, that even young boys beat girls in ways that make fair competition between the sexes possible. Unless you’ve been following this debate closely, you may not realize what a huge deal the previous position represents. Just a few years ago, anti-rights activists were arguing that swimmer Lia Thomas, who changed going from male to female in college, he could compete fairly against women by suppressing his testosterone.
The slide reflects the fact that, while America has been wracked by culture wars over the eligibility of women’s sports, the wider world of sports has moved on. Many international organizations that previously allowed trans adults to compete in the women’s division have looked at the science and changed their policies. In 2024, the International Olympic Committee provided media guidelines that warn against the use of words biologically male. This March, however, the IOC it prevailed that eligibility for the women’s category is “now restricted to biological females, determined on the basis of a one-time SRY gene test,” referring to a simple cheek swab that shows whether an athlete has a Y chromosome.
The Olympic decision was based on a moderate response to the gold medal won by Algerian athlete Imane Khelif, who competed in women’s boxing at the Paris Olympics according to the gender listed on her passport. (He since then confirmed that she has XY chromosomes, as well as being male.) Khelif’s case, like that of Lia Thomas, sparked international outrage, perhaps contributing wide drop in support of transgender rights more generally.
The LGBTQ movement likes to point out lessons showing that when people encountered gay Americans in their daily lives, their support for gay marriage rose. But publicity about trans women competing in women’s sports has had the opposite effect. A popular ad by 2024 Trump’s campaign featured 6-foot-plus, 50-something men competing on women’s college basketball teams. When most people see such pictures, they don’t think that the situation is right.
Any discussion of trans sports has to recognize the vitriol and aggression that accompanies this debate. Young athletes have faced dire circumstances protest on their track they encounter a huge wave of online abuse, even though they follow the current laws in their country. The second athlete who was moved by a case before the Supreme Court, Lindsay Hecox, tried to withdraw from his case after the Supreme Court agreed to deal with the matter, mentioning “bad public scrutiny.” (Judge is blocked her request.) Meanwhile, sports stars like former tennis champion Martina Navratilova—a gymnast who is a longtime LGBTQ rights activist—have to be separated after arguing for restricting the category of women to biological women.
In his decision, Kavanaugh avoids triumphalist or demeaning language, and shows sensitivity to the challenges facing transgender Americans—though without using the terminology favored by LGBTQ activists. “We are acutely aware of the difficulties that boys who identify as girls (and girls who identify as boys) sometimes face in middle school, high school, and beyond,” she writes. “And we’re really surprised by the desire of all students, including transgender students like BPJ, who want to participate in sports.” He concludes the sentence by adding: “Their desire to compete demands respect. No student-athlete on either side of the issue, whether biological or transgender, deserves to be singled out or humiliated.” Casual readers may not register this tone of respect carefully, until they reach Clarence Thomas’s harsher compromise, which refers instead to “men who believe they are women” and makes it clear that he will not respect preferred pronouns: “To use language to hide the truth—to show ‘indifference about the truth’—is to lie to the public.”
But Kavanaugh, not Thomas, represents the feelings of most Americans on this issue: no idle scorn, but a firm emphasis on the importance of accepting gender differences in some areas of life. Even Melania Trump has taken this course, announced yesterday on X that “we can support the rights of the LGBTQIA+ community and also protect opportunities for female athletes.” (Let’s hope she tells her husband.)
Many on the left will read this ruling as a loss, because it allows the 27 states that restrict women’s sports to female athletes to continue to do so. But contrary to the all-or-nothing approach advocated by trans activists, the decision offers a middle ground. Respect self-expression and prevent discrimination in housing and workplaces, but do not force everyone to deny the evidence of their own eyes.
