The Supreme Court’s trans sports ruling is about more than athletics

People think they know that men are stronger than women. But what is strength? One of us might see our mother as the strongest person we know because strength is not measured solely by muscle and arm length. It can be fortitude. The entire premise of sex differences rests on the fundamental distinction between male and female participants. It is an assumption that may fall apart under closer analysis. In sport, average men and women do not compete; individuals do — unless, of course, they are transgender.

Fundamentally, sports are about winning and losing. And while nobody likes losing, there are good losses where participants learn how to improve. But there are also bad losses that leave people demoralized, broken, and without a viable path forward.

On Tuesday, the U.S. Supreme Court dealt the transgender community a bad loss. While the Court upheld state laws blocking transgender people from playing sports in alignment with their gender identity, the decision went far beyond that. News media largely ignored this fact, but that is where the bad loss should not be ignored.

The way the Court waved away equal protection claims for the transgender community and blocked many as-applied challenges to particular applications of a law will have devastating effects on the lives of transgender individuals. Functionally, the Court rubber-stamped state policies designed to erase transgender people, provided a state can justify the policy as a sex-based classification. As Justice Sonia Sotomayor warned in dissent, almost any policy involving a remotely defensible sex classification can now require transgender people to live according to their sex assigned at birth.

Related: States can ban transgender women and girls from sports, according to U.S. Supreme Court

In effect, the Court has opened the door for states to issue "trans bans" anywhere sex-based classifications exist. Justice Neil Gorsuch noted in his concurrence that sex-differentiated dress codes are not covered by the logic of Bostock, preserving that precedent while narrowing it. Under that reasoning, a transgender man could be required to wear women's business attire at work despite Bostock's protections against discrimination. Likewise, transgender women who have medically transitioned can still be forced into men's prisons under state policies based on birth sex.

Combined with Skrmetti, this decision effectively allows states, and likely the federal government, to regulate transgender health care for adults out of existence. A government need only say it is regulating procedures differently for men and women, and the policy may survive constitutional scrutiny. Even transgender people who have already undergone gender-affirming medical care could lose access to follow-up treatment.

The ruling also forecloses challenges to sex-based classifications even when an individual can show the state's justification does not apply in their particular circumstances. In the West Virginia portion of the decision, a transgender student who never experienced a male puberty because of puberty blockers was still barred from girls' sports. Intersex people likewise face diminished ability to challenge policies that erase their existence.

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

Before the decision, and in much of the coverage afterward, the public conversation centered on fairness in women's sports. As Justice Brett Kavanaugh wrote, these cases are often viewed as "zero-sum": if someone wins, someone else loses. Fair enough. But this ruling reaches far beyond athletics.

Justice Clarence Thomas went further still, arguing that transgender people do not exist as a constitutional category but are simply men or women with gender dysphoria. He characterized gender identity as "a mutable mental state that is the object of psychiatric treatment" and suggested that transgender people are dishonest when they live according to their gender identity.

This decision is catastrophic not only for transgender people but for the broader LGBTQ+ community because sex, gender, gender identity, and sexual orientation are deeply interconnected. It is not the first major defeat LGBTQ+ people have suffered at the Supreme Court.

What do we do after a bad loss? We get angry. We pick ourselves up. We learn from the experience.

The ACT UP movement emerged in part after the Supreme Court's 1986 decision in Bowers v. Hardwick, which upheld laws criminalizing same-sex intimacy. Over time, advocacy organizations and ordinary people changed public attitudes. Our own research on transgender public opinion shows that work must continue today.

Public attitudes toward transgender people remain troubling. They are often closer to Clarence Thomas's view than to the hopes of LGBTQ+ advocates. The transgender community and its allies must continue reaching beyond the courts and into the hearts and minds of the public.

Too many Americans still lack a basic understanding of transgender people's lives. That makes it easy to treat transgender people as political footballs. It blinds people to injustice.

Make no mistake: this decision is an injustice.

The Court today lacks even the understanding it displayed in Bowers. Only by building greater public understanding can we show both the Court and the American public how profoundly misguided this ruling is. Its consequences extend well beyond sports into nearly every aspect of transgender people's lives.

Underlying the anti-trans focus of this ruling is sexism—a force often intertwined with racism. Those are also issues on which this Court has delivered significant setbacks in recent years.

Wins and losses are part of sports. In law, however, a loss can shape generations. This decision carries implications far beyond athletics, and those consequences will become increasingly apparent as transgender lives are disrupted.

Andrew R. Flores and Jami K. Taylor authored this entry independent of our institutional affiliations.

Andrew R. Flores, PhD, and Jami K. Taylor, PhD, are political scientists. The views and opinions expressed in this article are those of the authors in their personal capacities as private citizens, and these opinions do not reflect the official policies or positions of their employers. Drs. Flores and Taylor have published peer-reviewed research in leading journals in political science and public policy.

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