The Supreme Court seems poised to deliver another blow to trans rights

There was never much reason to hope that the Supreme Court, which heard two cases on Tuesday asking whether transgender women have a right to play women’s high school or college sports, was going to side with those athletes. The Court has a 6-3 Republican majority. And, even if it didn’t, existing law isn’t particularly favorable to trans women seeking to play on a sex-segregated sports team. The Supreme Court seems poised to deliver another blow to trans rights Trans athletes always faced a difficult road in this Court. Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. Nothing said during Tuesday’s arguments in Little v. Hecox or suggested that the athletes at the heart of these two cases are likely to prevail (although the Court may dismiss West Virginia v. B.P.J. Hecox , because the plaintiff in that case is a college senior who does not intend to play sports for the rest of her time as a student, potentially making her case moot). Few of the justices appeared interested in the trans plaintiffs’ strongest legal arguments, and a surprising amount of the justices’ questions focused on a genuinely novel and difficult issue that most of the justices appeared likely to resolve against trans athletes. The high-water mark for trans rights in the Supreme Court was Bostock v. Clayton County (2020), which held that a federal law banning employment discrimination “on the basis of sex” protects trans workers from discrimination. Bostock assumed that laws barring “sex” discrimination bar only discrimination based on “biological distinctions between male and female” (that is, they forbid discrimination based on sex assigned at birth). But, that’s enough to protect trans workers. If a cisgender male worker may wear clothing associated with men, use a male name, and otherwise present as a man, then an “employee who was identified as female at birth” must also be allowed to do so. The Bostock framework, however, does not help trans athletes, because the law generally permits public schools and universities to require men to play on one team and women on a separate team. Unlike the workplace, where sex discrimination is broadly prohibited, some forms of sex discrimination are allowed in competitive sports. So, to prevail in Hecox or B.P.J. , the plaintiffs must do more than show that they are victims of sex discrimination. Their best argument is that the Constitution also prohibits public schools from discriminating against people because they are transgender . But, only Justice Neil Gorsuch showed much interest in this argument. Instead, the other justices seemed to frame the case in a way that’s much less favorable to trans plaintiffs. Typically, when a plaintiff alleges that a state law violates the Constitution’s guarantee that all people must enjoy “ the equal protection of the laws ,”...

Preview: ~500 words