Read the Supreme Court’s recent ruling on transgender athletes — the majority’s decision, written by Justice Brett Kavanaugh, and the dissent, written by Justice Sonia Sotomayor — and you will see the members of the court arguing about something more fundamental than the law. They are arguing about who should be seen, whose story ought to be heard and who deserves to be protected.
Kavanaugh’s opinion contains a long lyrical tribute to female athletes. “They spend extraordinary time and effort to train in the heat and in the cold, to work out early in the morning and late at night, to get a little faster, to become a little stronger, to jump a little higher, to shoot a little better, to watch a little more video, to make the lonely journey back from an ACL tear, to scrap for playing time, to start, to win the game, to win a championship, to hang a banner, to bring home a medal, to be all-tournament, all-County, all-State or all-American,” he writes. “Whether the star of the team or the last player on the bench, they form lifelong friendships and lifetime memories.”
Sotomayor’s dissent, too, includes a description of a young person in love with her sport. Referring to a plaintiff by her initials, Sotomayor writes, “B.P.J.’s mother reports that B.P.J. ‘has had the time of her life participating on these teams.’ She has watched B.P.J. make close friends and gain a sense of belonging. Her mother recalls taking B.P.J. to practice after hours and on weekends, and often witnessing B.P.J. practicing her form in the backyard ‘by herself, for hours.’ Above all, her mother explains that B.P.J. ‘is the happiest I have ever seen her when she is accepted for who she is and able to participate in school sports.’”
Kavanaugh and Sotomayor are looking at different athletes: He is describing cisgender girls, and Sotomayor is focusing on one of the plaintiffs in the case, a West Virginia high school student named Becky Pepper-Jackson who was excluded from middle school sports after her state enacted legislation banning the inclusion of trans girls in girls’ sports. (When a district court found West Virginia’s law to be probably unconstitutional, Pepper-Jackson joined her school’s track and cross-country teams.)
Kavanaugh’s argument stresses that everyone deserves to compete on a level playing field. People assigned male at birth have an inherent physical advantage, he writes; they are, on average, taller, bigger, faster and stronger than people assigned female at birth. Making members of these two groups compete with each other is unfair. Pepper-Jackson can join the boys’ team or not participate at all.
Sotomayor’s argument is also based on the idea that everyone deserves to compete on a level playing field. Pepper-Jackson began taking puberty blockers at age 10, the justice points out, ensuring that she never went through male puberty. At 12 she started hormone replacement therapy, which brought about a typical female puberty. Sotomayor’s colleagues, she said, had reached their decision without considering whether Pepper-Jackson actually had an athletic advantage over other girls.
Concern for the physical safety of women and girls is an important part of the court’s decision and a leitmotif in the ongoing attacks on trans rights. The opinion emphasizes that competing with or alongside people the conservative majority insists on calling “biological males,” especially in contact sports, poses a physical danger to girls. This seems like a reasonable concern, but the logic is convoluted. If males, by virtue of their weight and height and sheer physical strength, pose a risk to women in sports, then putting a trans girl like Pepper-Jackson in an all-male sports environment would — aside from all the social complications and locker room logistics — by definition put her in physical danger.
The question, then, is: Who warrants the court’s protections? The millions of cisgender girls who participate in school sports in this country? The handful of trans girls who wish to take part, too? (Pepper-Jackson is believed to be the only trans girl in her state seeking a spot on a girls’ team.) The answer would seem to be obvious: To the extent that it is possible, both groups should be protected from physical danger and unfair competition.
Before West Virginia banned transgender girls from girls’ sports, the state used to handle such matters on a case-by-case basis. If a team objected to the presence of a trans girl on a competitor’s roster, the team could register a complaint, and a board would review the case. Sotomayor, arguing in favor of that approach, reminds the court that it used to believe in viewing people as individuals rather than solely as representatives of a group or a class. She quotes from United States v. Virginia, a 1996 case that forced the Virginia Military Institute to open its admissions to women. In that decision, the court banned “state action that denies individuals ‘full citizenship stature,’ or ‘equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities,’ because of a class to which they happen to belong.”
The majority opinion seems to acknowledge that sport participation is indeed a form of participation in society — a pathway to that “full citizenship stature.” Kavanaugh writes that since 1972, when the law first required all schools to give girls a chance to take part in sports, “those lessons and experiences in sports have empowered millions of American women who have gone on to thrive in all aspects of American life.” Still, he writes, “regulations cannot and do not guarantee every student a spot on a team’s roster.”
Sports can be an instrument of inclusion. So can the law. But in the hands of this court, the principles and practices that were once intended to enfranchise more people often become, instead, tools of exclusion.
