Supreme Court Justice Sonia Sotomayor issued a sharp dissent Tuesday after the court's conservative majority upheld state laws that ban transgender girls and women from participating in female school sports teams. The ruling allows such bans to stand under Title IX and the Equal Protection Clause.
In her dissent, Sotomayor emphasized the significant advantages of athletic participation, noting that it fosters resilience, leadership, community, and a sense of belonging. She argued that the court's decision permits the exclusion of transgender students like B. P. J. based on a presumption of inherent athletic advantage, even when factual evidence demonstrates otherwise.
"In the end, to the Court, the facts do not matter, even though the consequences are serious," Sotomayor stated. She contended that bans can prevent transgender students from engaging in sports, even if they would not displace cisgender athletes, if all participants make the team, or if participation could aid in treating gender dysphoria. Sotomayor concluded that while some sports are competitive, the law should not be applied in a way that bars participation based on perceived advantages without factual basis.
The majority opinion, written by Justice Brett Kavanaugh, affirmed that Title IX and the Equal Protection Clause permit these exclusionary policies. All three liberal justices, Sotomayor, Elena Kagan, and Ketanji Brown Jackson, dissented in part. While they agreed with the court's interpretation of Title IX, they disagreed with the majority's reasoning regarding the Equal Protection Clause.
The 6-3 ruling means that state laws barring transgender girls and women from competing on female sports teams will remain in effect. Sotomayor expressed that the court erred by reducing the constitutional burden on state actors when classifying individuals based on sex, particularly in the context of sports.