What the Supreme Court did not decide in the trans sports case

On Tuesday, the U.S. Supreme Court held in West Virginia v. B.P.J. (decided together with Little v. Hecox) that neither Title IX nor the Equal Protection Clause prevents states from barring transgender girls from girls’ sports. But the majority opinion, written by Justice Kavanaugh, is a narrow one, and its limits are significant. Here are the most important.

It permits these bans—it doesn’t require them

The Court held that states and schools may exclude transgender girls from girls’ and women’s teams. It did not hold that they must. The decision removes a constitutional and statutory obstacle to the bans; it does not impose them. This ruling does not require states and schools that have chosen not to discriminate against transgender girls to abandon those inclusive policies.

It leaves the door open for inclusive policies

The Court pointedly declined to foreclose inclusion. It left open the question of whether schools that want to let transgender girls play on girls’ teams may do so. In a key footnote, the Court called this a “distinct question,” not presented in this case, and stressed that “[n]othing in this opinion is intended to decide” it. That question is now moving through the lower courts, and schools that welcome transgender athletes remain free to adopt and defend inclusive policies.

It is limited to the sports context

The Court repeatedly emphasized that sports are distinct, and it tied both halves of its analysis, the Title IX holding and the equal protection holding, to that distinctiveness. The majority drew an explicit contrast with “a typical employment or educational opportunity where equal protection often may require that the government generally treat an individual without regard to the individual’s sex.” The opinion does not present its reasoning as a general rule for other settings such as classrooms, restrooms, or school programs.

It does not resolve the underlying science

The Court did not find that transgender girls who have taken puberty blockers or hormones have any competitive advantage. It described that question as “the subject of ongoing medical and scientific debate” and “not settled” at this time. Rather than resolve it, the Court said that “[t]he legislatures and the schools are better equipped—and under the Constitution, are the more appropriate entities—to assess the competing medical and scientific considerations and draw appropriate lines.” The ruling rests on the majority’s view that intermediate scrutiny does not demand an individualized fit, not on any factual finding about athletic advantage.

It leaves the level of constitutional protections for transgender people open

Addressing the argument that these laws discriminate against transgender people, the Court declined to decide whether classifications targeting transgender status receive rational-basis review or heightened scrutiny, holding that the laws survive “either way.” The majority did not hold that anti-transgender classifications get only rational-basis review. That question remains formally unresolved, and a future case could still establish that laws targeting transgender people warrant heightened constitutional scrutiny.

A setback, not the end of the road

This is a disappointing decision, but a narrow one, a setback, not the end of the road. The Court decided only what states may do in the specific arena of sports. It did not resolve the science, settle the standard of constitutional scrutiny, or take away schools’ freedom to include transgender athletes. Those decisions still sit with school boards, athletic associations, and the people who actually know these kids. Every child deserves the chance to play sports with their friends and to learn what sports teach: determination, resilience, and teamwork. This ruling doesn’t change that.

Shannon Minter is the legal director at the National Center for LGBTQ+ Rights and one of the nation's most influential civil rights attorneys. This piece first appeared on NCLR's blog.

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