Trans Sports Bans Have Made It To The Supreme Court. That May Not Go The Way Republicans Expect.

The case against trans sports bans is surprisingly strong.

This morning, it was announced that the Supreme Court had agreed to take up two cases regarding laws banning transgender girls from girls’ sports. At first, this move seems concerning; given the recent ruling upholding Tennessee’s ban on gender-affirming care for minors, the court has already signalled a willingness to defend transphobia. However, these cases are radically different from Skrmetti, and that’s all because of how the challenged laws are written and what they ban. And despite the politically charged nature of this issue, West Virginia and Idaho’s laws may actually end up being struck down.

Uncharted Waters

In Skrmetti, the Supreme Court agreed with Tennessee’s argument that in banning gender-affirming care, it was ‘regulating’ treatment for a medical condition—gender dysphoria—and not placing restrictions on a group of people. The court found that, because of the manufactured scientific uncertainty surrounding gender-affirming care, Tennessee had a vested interest in protecting its population from what they believe is undue harm. Surprisingly, that same argument doesn’t apply here, nor is it ever mentioned in either law.

Barring access to sports on medical grounds can only be done if the student has a disability that poses a risk to themselves or others. Examples of this would be conditions such as asthma, severe ADHD, and congenital heart conditions. And even if the states were to classify gender dysphoria as a disability (which would be difficult because it has never been found to limit essential functions), per Section 504 of the Rehabilitation Act of 1973, reasonable accommodations must be considered before outright denying someone equal opportunities, and those determinations must be made on a case-by-case basis.

A blanket ban on a medical condition doesn’t work here, so the laws wouldn’t satisfy rational basis review on the state’s hypothetical interest in protecting students from harm caused directly or indirectly by a medical condition.

Poorly Written, Poorly Defined

With that thrown out the window, the cases alleging sex discrimination on the 14th Amendment’s Equal Protection Clause and Title IX grounds may actually have a chance. The Supreme Court already ruled in United States v. Virginia (1996) that ‘gender-based government action must demonstrate an exceedingly persuasive justification.’ Previously, what qualifies as ‘exceedingly persuasive action’ had been defined in the 1982 case Mississippi University for Women v. Hogan:

The burden is met only by showing at least that the classification serves "important governmental objectives and that the discriminatory means employed" are "substantially related to the achievement of those objectives." The test must be applied free of fixed notions concerning the roles and abilities of males and females.

What stands out about these bans is that they only ever ban transgender girls from girls’ sports and not transgender boys. They do so by defining sex as being determined by a student’s ‘internal and external reproductive anatomy,’ ‘normal endogenously produced levels of testosterone,’ and/or ‘genetic makeup.’ So if one knew nothing about biology and based their knowledge solely on Idaho and West Virginia's findings about sexual differences in sports, they’d walk away thinking that ‘biological males’—even if they never went through male puberty—are always stronger than ‘biological females,’ and that ‘biological females’ who go through male puberty will never threaten the ‘fairness’ of women’s sports.

This is a key point, and the Fourth Circuit Court of Appeals, in its ruling against West Virginia, found that to be inherently discriminatory. The plaintiff—a trans girl known by the initials B.P.J.—was banned under the law despite having never gone through male puberty. Clearly, ‘fixed notions concerning the roles and abilities of males and females’ are at play here, and that’s a completely different story.

Of course, for heightened scrutiny to apply, sex must be shown to be the determining factor in the bans, and as it turns out, it most certainly is. For this hypothetical, let’s establish a cis girl named A.K.R. Now, A.K.R. is the same height, shoe size, and weight as B.P.J., can lift the same amount of weight as B.P.J., can run a mile exactly as fast as B.P.J., and has exactly the same estrogen and testosterone levels as B.P.J. The only difference is that A.K.R. was born female and B.P.J. was not. Because A.K.R. is allowed to compete and B.P.J. is not despite them being exactly identical in every other way apart from sex, sex—not strength, speed, skill, or height—can be ascertained to be the determining factor in the ban. As per Bostock, that’s textbook discrimination.

So, the burden is on West Virginia and Idaho to prove protecting girl’s sports is an ‘important governmental objective’ and that the way they are going about it is ‘substantially related to the achievement of those objectives.’ Should they convince the court of that, it must still be shown that these laws are not based on ‘fixed notions concerning the roles and abilities of males and females.’ That will be exceedingly difficult simply due to how broad their definitions are and who is caught in their scope.

Of course, nothing is set in stone. And even if these laws are struck down, it most likely would only be a partial victory, one where states with laws like this will be forced to allow some exceptions. However, even something like that would constitute a massive political victory, and it would mean that the anti-trans campaign against ‘boys in girls’ sports’ would never be able to fully win. That alone is worth fighting for.