Yesterday I wrote about the oral arguments taking place at the Supreme Court on two cases involving trans athletes. The cases which arose in Idaho and West Virginia are somewhat different but both involve male students who identify as trans and who participate in sports as female.
Because my post yesterday wrapped up before the oral arguments were over, I didn’t have time to look at the general consensus of how the arguments went, though it seemed clear to me that the conservatives seemed very skeptical of the plaintiff’s arguments.
So today I wanted to circle back and just look at what some other observers have said about yesterday’s arguments. No surprises here, every outlet I’ve seen agrees the Justices seem to be in favor of the state bans. Here’s the NY Times:
The Supreme Court’s conservative majority on Tuesday seemed inclined to uphold a pair of state laws barring the participation of transgender athletes from girls’ and women’s sports teams.
The outcome of the cases from West Virginia and Idaho has implications for the 25 other states with similar laws, and for athletes who compete in school and collegiate sports around the country…
The three liberal justices, appearing to recognize the likely outcome, suggested through their questions that even if the laws are constitutional in most cases, perhaps the two transgender athletes at the heart of Tuesday’s arguments should be able to pursue their individual challenges…
The conservative justices emphasized that federal law has long allowed separate sports teams for boys and girls to ensure fair competition and raised concerns about undermining the goals of Title IX, the civil rights statute that has fueled participation in women’s sports.
NBC News saw it the same way.
The Supreme Court on Tuesday appeared likely to uphold state laws that ban transgender athletes from taking part in girls’ and women’s school and college sports…
During arguments, questions asked by justices indicated a majority appeared reluctant to find that the laws violate either the 14th Amendment to the Constitution, which requires that the law apply equally to everyone, or Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education…
A key point raised by several justices is that a provision of Title IX enacted two years later, known as the Javits Amendment, specifically allows for sex classifications in sports based on biological sex…
On the equal protection claim, Justice Amy Coney Barrett, another conservative, questioned whether a ruling for the transgender plaintiffs would open the door to “boys who just couldn’t make the [boys’] team because they are just not good enough” try to play on the girls’ team instead, even if they do not identify as girls.
And one more. This is from ScotusBlog:
The Supreme Court on Tuesday seemed likely to uphold laws that prohibit transgender women and girls from competing on women’s and girls’ school sports teams. After nearly three-and-a-half hours of arguments in a pair of cases from Idaho and West Virginia, a majority of the justices appeared to agree with the states that the laws can remain in place, even if it was not clear how broadly their ruling might sweep.
The court’s three Democratic appointees appeared to recognize that the challengers faced an uphill battle. They seemed to devote much of their efforts to mitigating their losses – either by getting one case thrown out or by limiting the court’s decision to a narrow one.
Fox News has a report on some of the key moments during arguments when even the attorneys had to back away from common arguments.
In that case, over a West Virginia trans teen who also sued to block a state law meant to keep males out of girls’ sports, American Civil LIberties Union (ACLU) attorney Joshua Block suggested that “sex” should not be defined.
“I really urge the court not to do it on the definition of sex argument,” Block said, later adding. “I don’t think the purpose of Title IX is to have an accurate definition of sex. I think the purpose is to make sure that sex isn’t being used to discriminate by denying opportunities.”
But after grilling from Chief Justice John Roberts, who insisted sex “must mean something,” Block conceded that sex should be defined by biology for the sake of this case, but this case only.
“I think for this case, you can accept, for the sake of this case, that we’re talking about what they’ve termed to be biological sex,” he said.
So this is likely to be a win for the states that have banned trans athletes. The only question is how big of a win they will get. Such a ruling won’t change the law in states that allow trans athletes to compete but it could lead to new legal challenges to those laws over time. Even Gov. Gavin Newsom of California has said he doesn’t think having males compete against females is fair.
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