The Supreme Court ruled Tuesday that states can prevent transgender women from competing for women’s sports teams in secondary schools, colleges and universities. More than twelve states have rules that prevent international athletes from competing with teams that do not match their assigned gender at birth.
The results were not surprising. Two years ago, during oral arguments in another landmark case for transgender rights, Justice Brett Kavanaugh made it clear how he would vote if anyone brought a case involving trans athletes to his Court.
If trans people were given enhanced constitutional protections, similar to the kind of protections the Constitution provides against laws that discriminate on the basis of sex, then Kavanaugh concern that trans women will get justice “playing in women’s and girls’ sports … regardless of competitive equality and safety concerns that have been voiced by some female athletes.”
His concern was heightened by Justice Amy Coney Barrett, a conservative Republican who sits near the center of this conservative Court, when the Court issued its decision in United States vs. Skrmetti (2025). Barrett wrote a concurring opinion arguing that trans people enjoy no more constitutional protection than any other American.
Kavanaugh and Barrett’s remarks were a warning to prosecutors about what could happen if they bring the question of whether transgender women can play on women’s sports teams at the high school or college level to the Supreme Court. Still two of those cases, which were combined under the name West Virginia vs. BPJhe was brought before the Supreme Court anyway.
on tuesday, BPJ it reached its inevitable conclusion. In Kavanaugh’s opinion, which was joined by all five Republicans remaining on the Court, the Court ruled that states can bar transgender women from participating in women’s sports. Both of these cases were filed years ago, and the plaintiffs received favorable rulings from lower courts, even as judges like Kavanaugh and Barrett removed hints that those lower court rulings were lost.
But the Court, and the Republican Party more generally, have has grown more openly hostile to people crossing borders in the past several years. So it’s been open for a while BPJ it would not end well for transitional rights if the case is not settled or dismissed before it reaches the judges.
In fact, results in BPJ it was shown over the phone by the Court that one of the plaintiffs took the note. The court actually decided two transitional sports cases on Tuesday, although they included both in one opinion. The plaintiff in one of those cases, Lindsay Hecox, made the wise decision to ask the justices to throw out her case after the justices said they would hear it — though Kavanaugh’s comments denied this request in a footnote.
Although three Democratic justices dissented, their dissent was weak. Justice Sonia Sotomayor, who upheld the original dissent, said the case should have been sent back to the lower courts to conduct additional fact-finding — which may or may not have strengthened the transitional rights case.
BPJ it does not mean that the battle for transitional rights is over. After BPJtrans people and their supporters remain free to lobby state and federal legislators, support candidates for elected office who support their causes, and otherwise attempt to advance trans rights through the democratic process.
But BPJ It is a warning that the court is not a friendly platform for trans people. And the defendants prosecuting are likely to lose future cases in federal court if they continue to ask the Republican-dominated court to expand transitional rights.
The Supreme Court has issued one decision in favor, and that case was very different BPJ
Proponents of transitional rights had some reason to be encouraged as they began their legal journey: The Supreme Court’s 2020 decision in Bostock vs. Clayton Countyone of the biggest victories the Court has so far handed to trans people.
But Bostock opened up different legal issues than BPJto fight for inclusion in sports stronger lift from the beginning.
Bostock held that a federal statute prohibiting “sex” discrimination in employment prohibits employers from discriminating against LGBTQ people. Although the Court understood the word “sex” to refer to sex at birth (or what Kavanaugh insists on calling “biological sex” throughout his life. BPJ opinion), the majority of the justices concluded that “it is not possible to discriminate against someone for being gay or transgender without discriminating against that person on the basis of sex.”
The idea is that if Ralph can date Jeanene, but Juanita doesn’t, so be it Juanita is treated differently because of her gender. Similarly, if a cisgender male employee can wear casual male clothing, use a male name, and otherwise be male, then an “employee who identified as female at birth” must also be allowed to do so, or they are discriminated against because of their gender.
But, as Kavanaugh points out in his BPJ comments, although federal law prohibits gender discrimination in employment, it “authorizes separate men’s and women’s sports teams” in high schools and colleges. So Bostock it doesn’t help trans athletes in cases like BPJ because sexism in sports is not illegal.
Without Bostock going back, the plaintiffs in BPJwho are all transgender women who wanted to play women’s sports, had to convince the judges that there was another reason why they were facing illegal discrimination. They concluded by saying that not all trans women should be allowed to play on women’s teams, but only trans women who have received treatment that lowers their testosterone levels to the level normal for cisgender women.
The idea was that there are some trans women who haven’t gone through male puberty or otherwise don’t enjoy a competitive advantage over other women, and that these trans women should be allowed to play women’s sports.
But, as Kavanaugh writes, the law allows states to use the blunt instrument of having one team for men and another team for women, regardless of the fact that some men are less capable athletes than most women. This principle, he says, holds regardless of an athlete’s gender identity. As Kavanaugh says, “in a different sports context … States can treat all biological males equally and treat all biological females equally.”
The bottom line, in other words, is that this Court seems unwilling to give people who cross borders any rights they didn’t get in Bostock comments. Sometimes prosecutors can prevail in situations where gender discrimination is prohibited, but in places where the law can discriminate on the basis of sex, it can also discriminate against transgender women.
So where can trans people go from here?
Finally, BPJ it’s a reminder that, as long as the Republican Party controls the Supreme Court, the liberal political movement has fewer options than the conservative one. Republicans and right-wing groups have the option of filing federal lawsuits asking the courts to overturn the law in their favor, while Democrats and left-leaning causes. he cannot even trust this Court to use the existing precedents that protect their rights.
Again, that doesn’t mean trans people are cooked. But it means that, like all groups that are favored by Democrats and not favored by Republicans, they are more likely to win in councils that are controlled by the Democratic Party.
Indeed, one way that human rights groups can advance their goals is by changing the structure of the federal judiciary. If Democrats win control of the Senate this November, they could freeze all confirmations of Trump’s judicial appointees and prevent the federal judiciary from growing more hostile to liberal causes like transitional justice. If the Democrats win the presidency in 2028, they can replace the judges who joined Kavanaugh. BPJ comments with friendly faces.
But until that happens, BPJ it’s not just a lesson for rights defenders, it’s a lesson for almost everyone on the political left. The Supreme Court is a hostile place for Democrats often ignores the law to advance Republican causesand most Republican judges treating even established legal norms with contempt.
If you’re a left-leaning lawyer of any kind, it’s a good idea to stay away from this Supreme Court if you can.
