Supreme Court allows for states to ban trans athletes from female sports

In a wide-ranging decision, the justices said such statutes, like one approved by Arizona lawmakers in 2022, do not run afoul of federal laws that prevent discrimination based on sex. Justice Brett Kavanaugh, writing for the majority, also said that these laws also do not offend constitutional provisions requiring equal protection for all.

But the ruling could have more immediate implications in Arizona even though, strictly speaking, the case before the high court deals with transgender girls from Idaho and West Virginia who want to compete with — and against — other girls.

A federal judge here in 2023 allowed two transgender girls — those defined as biological boys based on their identity at birth — to participate in girls' sports despite the 2022 Arizona law. Judge Jennifer Zipps said that the law illegally discriminates against the plaintiffs based on their transgender status, though she did not invalidate the entire statute.

In that ruling, Zipps said their individual situations — not having entered puberty and taking hormone blockers — shows they had no physical advantage over those who were born biologically female.

But Kavanaugh, in his 29-page opinion, said trial judges should not be making those kindS of individualized decisions. Nor was he convinced by arguments that transgender girls do not have a physical advantage, meaning they should be allowed to compete in girls' sports.

"That premise is the subject of ongoing medical and scientific debate,'' Kavanaugh wrote. And even if it were true, he said, it does not override the court's conclusion that states that limit female teams to biological females do not violate equal protection requirements.

In fact, just hours after that ruling, the justices sent the Arizona case back to Zipps to reconsider her ruling in favor of allowing the two transgender girls here to participate in girls' sports — but this time based on what they ruled in the Idaho and West Virginia case. No date has been set for a hearing

"The ruling is very disappointing,'' said Rachel Berg. She is an attorney with the National Center for LGBTQ Rights who filed suit on behalf of the two transgender girls, getting Zipps to rule that they are entitled to play in girls' sports.

But Berg told Capitol Media Services she doesn't believe Tuesday's ruling will mean that Zipps will throw out the case. And she said there is a "strong path forward'' for the judge to uphold her earlier order.

At this point, only one plaintiff remains: a transgender girl who recently graduated from Aprende Middle School in the Kyrene Elementary School District. Berg said she intends to participate in girls' sports when she goes to high school.

The other plaintiff had been a student at the private Gregory School in Tucson who Berg said has graduated.

"She's not playing sports in Arizona ever again,'' Berg said.

At the heart of Tuesday's ruling is the finding that state laws limiting participation in sports based on biological sex are not illegal.

"Separate sports teams for biological males and biological females are reasonable,'' Kavanaugh wrote. "Given the inherent physical difference between the sex, allowing only biological females to play on women's and girls' teams can reduce the risk of physical injury and ensure fair competition.''

The court said none of that violates Title IX which bars discrimination on the basis of sex. The justices said states are free under that law to define "sex'' as "biological sex,'' meaning the sex assigned at birth — and not in the broader sense of how athletes identify themselves.

And the court said that, for the same reason, there is no violation of the Equal Protection Clause of the U.S. Constitution.

For Berg, the key to that "path forward'' is she said that her lawsuit is built on more than the two issues addressed by the Supreme Court in the Idaho and West Virginia case.

One is that her lawsuit includes a claim of violation of the Americans with Disabilities Act. Berg said this issue — not addressed in Tuesday's ruling — stems from the argument that the transgender girls have "gender dysphoria,'' a psychological condition where there is distress because there is a mismatch between a person's gender identity and their sex assigned at birth.

The other, Berg said, is her argument that lawmakers, in approving the 2022 law, acted with "discriminatory intent'' to harm transgender girls. And that, she said, could provide a basis for Zipps to conclude that, despite Tuesday's ruling, the Arizona law is unenforceable.

State schools chief Tom Horne who fought Zipps' ruling, said he doubts any such claims will succeed when the case goes back to the federal judge in Tucson.

He said the Supreme Court ruling will protect girls' sports, including in Arizona. More to the point, Horne said it is not fair for biological girls to have to compete against biological boys — meaning those born male — saying they have advantages from birth in size, speed and strength.

Nor was he convinced that any of that could be overcome because a biological boy had not gone through puberty or was taking hormone blockers.

"We had a witness testify that, even before puberty, boys have an advantage over girls in sports,'' he told Capitol Media Services.

"If you've ever gone to an elementary school playground, you will see that,'' Horne said. "Boys are prepubescent but they are better than the girls.''

Kavanaugh made the same point, citing policies of the International Olympic Committee which limited participation in women's sports.

"The IOC found that biological males possess a 'performance advantage in all sports and events that rely on strength, power, and/or endurance,' '' the justice said, quoting from the committee.

"Athletes retain male performance advantage due in part to training effects and fixed traits,'' Kavanaugh wrote, again quoting from IOC rules. "There is no current evidence that testosterone suppression or gender-affirming hormone treatment eliminates this advantage.''

And even if there are exceptions, he said, states are free to draw such lines.

"Of course, no line that the states draw will satisfy everyone,'' he said. "But the judiciary is not the proper institution to make what would often been arbitrary and highly intrusive athlete-by-athlete assessments.''

And, Kavanaugh, like Horne, said it's also a matter of fairness, with sports generally a "zero-sum'' game.

"Every athlete who makes a team takes a roster spot from another athlete,'' he wrote.

"Every player who earns playing time reduces the playing time of a teammate,'' Kavanaugh continued. "Every competitor who wins a race or competition deprives another athlete of that victory, or medal, or prize.''

Tuesday's ruling comes ahead of efforts by Republicans lawmakers in Arizona to expand on the 2022 law.

A measure being sent to the ballot in November would further clarify the law, requiring that all sports be designated as male, female or coeducational and barring schools or athletic associations from opening up either interscholastic or intramural teams designed for females to the opposite sex.

What's dubbed the Protect Girls' Sports in Arizona Act also contains provisions restricting public and private schools that provide education from kindergarten through 12th grade from allowing restrooms, locker rooms or other private spaces for athletes from being used by someone who is not of the sex for that sport. And it defines "sex'' as "an individual's biological status as male or female as recorded at birth on the individual's original birth certificate.''

The proposal, if adopted, also would allow for lawsuits to be brought by any athlete who is deprived of an athletic opportunity because of any violation of the law.

Peter Gentala, president of the Center for Arizona Policy which lobbies on behalf of bills it says promotes traditional value of life, marriage and family, said voter approval of the measure sponsored by Rep. Selina Bliss, R-Prescott, provides "the surest and most lasting protection available'' to designating sports by biology — and "not a rule waiting on the next appeal.''