Supreme Court Justice Ketanji Brown Jackson joined two other justices in a strong dissent to the court’s Tuesday decision that states can bar transgender athletes from girls’ sports and insisted that Title IX “cannot plausibly” mean that “sex” only refers to a student’s birth gender.
Jackson joined Justices Elena Kagan and Sonia Sotomayor to disagree with the majority ruling that “The term ‘sex’ in Title IX, the Javits Amendment, and the Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex.”
Justice Jackson was incensed by the majority opinion and insisted that Title IX absolutely does “make room for individuals to live in the gender they choose.” She also delivered the tortured logic that transgender athletes are discriminated against “on the basis of sex” by being perceived as “aggressive.”
Jackson insists that trans athletes are being discriminated against no matter how they are perceived and that is a violation of the non-discrimination rules in Title IX any way you look at it.
“A transgender woman penalized for being perceived as aggressive has experienced discrimination ‘on the basis of sex’ just as much as a cisgender woman has, no matter that the transgender woman’s behavior matches expectations of her sex assigned at birth. Either way, the institution has imposed its gender-based expectations upon her. And either way, the institution may have violated Title IX,” she wrote.
Justice Jackson is infamous for saying she had no idea how to define what a woman is during her confirmation hearing in 2022 when Joe Biden nominated her to the nation’s highest court.
Tuesday’s 6-3 decision is a major blow to the left-wing notion that boys can become girls and that once they have “transitioned” they have no physical advantage over athletes born as girls. The decision allows states to ban boys who identify as girls from girls’ sports and allows for the likelihood that transgender athletes do, indeed, have a physical advantage over women.
Writing for the majority, Justice Brett Kavanaugh said the court could not require state sports authorities to make athlete-by-athlete determinations about whether a transgender girl has any male-based physical advantages in sports.
“Particularly in the sports context, determining the effects of the puberty blockers and hormones taken by transgender athletes — and then comparing each of those transgender athletes’ abilities to those of other individual biological males and individual biological females in the relevant sport — would be an almost impossible task for a judge to perform on an equitable basis,” Kavanaugh wrote.
Kavanaugh added Title IX allows schools to create separate girls’ and boys’ sports teams based on “biological sex,” and said that states may use the same rule under the Constitution. He continued, saying, “Schools may determine eligibility for women’s and girls’ sports based on biological sex.”
Kavanaugh was joined in the majority opinion by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, Samuel Alito, and Amy Coney Barrett.
In her dissent, Justice Sotomayor claimed that the majority opinion went too far in its blanket determination that the courts cannot be expected to make case-by-case medical decisions and even called the decision “unencumbered by fact or law.”
In reference to trans athlete Becky Pepper-Jackson’s cases still pending in lower courts, Sotomayor wrote that, “In an opinion unencumbered by fact or law, the majority today cuts off that process prematurely, deciding instead that B.P.J.’s case must end now.”
She went on to warn that states will exclude trans athletes even where the “facts” shouldn’t support a ban.
“Because of the Court’s decision today, West Virginia, and any other state actor, can deny B.P.J. and others like her these experiences simply because it thinks they have an inherent athletic advantage, even if the facts show that they do not,” Sotomayor wrote. “Sports, of course, are often zero sum, but the law need not and should not be.”
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