The Supreme Court Rules That Sports Are Different

The Supreme Court Rules That Sports Are Different The justices position themselves at the center of American public opinion. Sports are unlike other parts of American life—treating men and women differently on the court or the field is okay. That’s the crucial point made by the Supreme Court’s judgment in West Virginia v. B. P. J. yesterday. By a 6–3 margin, the justices upheld state laws that define men’s and women’s sports by biological sex instead of gender identity. In other words, states cannot be forced to allow genetically male athletes who identify as women to compete in female sports; legislators have a legitimate interest in preserving fair opportunities for female athletes. In certain ways, this is a much narrower ruling than the plaintiff’s supporters feared. And it is easy to reconcile with the court’s 2020 ruling in Bostock v Clayton County, which held—in a major victory for LGBTQ rights—that employees cannot be fired for dressing or otherwise presenting themselves in ways that defy sex stereotypes. As yesterday’s ruling acknowledges, athletic competition raises issues that do not apply to employment or housing. The landmark federal civil-rights law Title IX protects single-sex teams because male athletes are typically stronger than their female counterparts, and the latter also deserve a chance to enjoy the benefits of athletic competition. Even the dissenting opinion by the three liberal justices conceded that segregating sports by biological sex is not unlawful sex discrimination under Title IX. Crucially, the majority ruling, by the conservative Justice Brett Kavanaugh, positions the court solidly in the mainstream of American public opinion: Somewhere between 66 to 80 percent of Americans believe that sports should be segregated by sex, rather than gender identity. Nonetheless, much of the online reaction to the case has been hyperbolic, driven by the demands of the Democratic Party’s internal politics. Seth Moulton, a Massachusetts congressman who previously raised concerns that his own daughters might compete against biological males, and is now running in a Senate primary, described the ruling as a “deliberate act of cruelty” and part of a “crusade to erase trans kids from public life and keep Americans divided.” The ACLU, which supported the plaintiff in West Virginia v. B. P. J., called it “devastating.” In recent years, LGBTQ advocates have portrayed any deviation from the statement that “trans women are women”—who should be treated identically with biological females in all circumstances—as inherently bigoted or even genocidal. Back in 2021, the ACLU’s most prominent trans-rights lawyer, Chase Strangio, suggested that sex-segregation in sport was equivalent to “eugenics” and it relied on “false” claims that men are typically stronger than women. These arguments have not survived contact with the experience of millions of Americans who are passionate about sports, and understand that it is not just prejudice or outdated tradition that prevents Megan Rapinoe from playing competitive soccer alongside Folarin Balogun. The sports issue has become a lead weight on the wider LGBTQ movement, which has other battles to fight: against President Trump’s executive order banning transgender people from the military, for example, or red-state laws that threaten criminal penalties for trans people who use bathrooms consistent with their gender identity. A tactical concession on sports could ultimately benefit transgender Americans, by allowing activists to focus on more winnable causes. It would also take some of the heat out of an issue that featured heavily in both Donald Trump’s 2024 election ads and liberal groups’ fundraising emails. Unfortunately, though, the left has become trapped in the position that sports inclusion is at once so existential that it’s worth taking to the Supreme Court, but also a “non-issue” affecting only a handful of students, whose opponents must be therefore motivated by spite. As the center-left commentator Matthew Yglesias puts it, “The conventional wisdom in Dem politics is that the sports issue is simultaneously trivial and also so important that you can’t compromise with public opinion on it.” In truth, trans-rights advocacy groups have already made significant compromises since the Biden era, where the demand was that sports should be segregated by self-declared gender identity alone. Before the Supreme Court, lawyers for plaintiff Becky Pepper-Jackson, a track-and-field and cross-country athlete in West Virginia, argued only that the small number of transgender girls who have never been through male puberty should be included in women’s sports. (She took puberty blockers at 10 and cross-sex hormones at 12, according to the judgment.) The unusual circumstances of Pepper-Jackson’s case allowed the liberal justices to partially dissent, on the grounds that she deserved a chance to have lower courts review the “unresolved factual dispute” about the extent to which male athletic advantage is mitigated by medical treatments. By contrast, Kavanaugh declares that making eligibility rulings case-by-case would be an “almost impossible task for a judge to perform on an equitable basis.” In the oral arguments, both sides produced well-credentialed experts and studies supporting their case. One side argued that male athletic advantage only really kicks in at puberty; the other that even younger boys outperform girls in ways that makes fair competition between the sexes impossible. Unless you’ve been following this debate closely, you might not realize what a huge concession the former position represents. Just a few years ago, trans-rights activists were arguing that the swimmer Lia Thomas, who transitioned from male to female while in college, could fairly compete against women simply by suppressing her testosterone. The climbdown reflects the fact that, while America has been convulsed by a culture war over eligibility for female sports, the wider sporting world has moved on. Multiple international associations that once allowed adult transitioners to compete in the female category have looked at the science and changed their policies. In 2024, the International Olympic Committee issued media guidelines warning against the use of the words biological male, on the basis that “a person’s sex category is not assigned based on genetics alone and aspects of a person’s biology can be altered when they pursue gender-affirming medical care.” This March, however, the IOC ruled that eligibility for the female category is “now limited to biological females, determined on the basis of a one‑time SRY gene screening,” referring to a simple cheek swab that reveals whether an athlete has a Y chromosome. The Olympic decision is a partial reaction to the gold medal won by the Algerian athlete Imane Khelif, who competed in women’s boxing in the Paris Olympics based on the sex listed on her passport. (She has since confirmed that she has XY chromosomes, and so is genetically male.) Khelif’s case, like Lia Thomas’s, generated an international backlash, perhaps contributing to a wider drop in support for transgender rights more generally. The LGBTQ movement is fond of citing studies showing that when people encountered gay Americans in their everyday lives, their support for gay marriage rose. But publicity about trans women competing in women’s sports has produced the opposite effect. A famous ad by the 2024 Trump campaign featured a 6-foot-plus, 50-something biological male competing on a women’s college basketball team. When most people see such images, they don’t think the situation is fair. Any discussion of trans sports has to acknowledge the vitriol and aggression that accompanies this debate. Teenage athletes have been subjected to nasty protests at their track meets, and tidal waves of abuse online, even though they are following the current rules in their home states. A second trans athlete with a case before the Supreme Court, Lindsay Hecox, tried to withdraw from her suit after the Supreme Court agreed to take up the matter, citing “negative public scrutiny.” (A judge blocked her request.) At the same time, sports stars such as the former tennis champion Martina Navratilova—a lesbian who is a longtime LGBTQ-rights campaigner—have been ostracized after speaking in favor of restricting the women’s category to biological females. In his ruling, Kavanaugh avoids triumphalist or demeaning language, and he expresses sensitivity to the challenges faced by transgender Americans—albeit without using the terminology preferred by LGBTQ activists. “We are acutely aware of the difficulties sometimes faced by boys who identify as girls (and by girls who identify as boys) in middle school, high school, and beyond,” he writes. “And we greatly admire the desire of all students, including transgender students such as B. P. J., who want to participate in sports.” He concludes the judgment by adding: “Their desire to compete warrants respect. No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified.” Casual readers might not register this carefully respectful tone, until they reach Clarence Thomas’s harsher concurrence, which refers instead to “men who believe that they are women” and makes clear that he will not respect preferred pronouns: “To use language to obscure reality—to show ‘indifference regarding the truth’—is to lie to the public.” But Kavanaugh, not Thomas, represents most Americans’ sentiments about this issue: no gratuitous disrespect, but a firm insistence on the importance of acknowledging sex differences in some areas of life. Even Melania Trump has taken this line, declaring yesterday on X that “we can support the rights of the LGBTQIA+ community and also protect opportunities for female athletes.” (Let’s hope she tells her husband.) Many on the left will read this judgment as a loss, because it allows the 27 states which restrict women’s sports to female athletes to continue doing so. But in contrast with the all-or-nothing approach demanded by trans activists, the ruling presents a middle path. Respect self-expression and prevent housing and workplace discrimination, but don’t demand that everyone deny the evidence of their own eyes.