Supreme Court Justice Sonia Sotomayor gave a blistering dissent after the conservative-majority court ruled Tuesday to uphold a ban on transgender athletes playing on female school sports teams.
Justice Brett Kavanaugh wrote the ruling that upheld that Title IX and the Equal Protection Clause allows bans on transgender girls’ and women’s participation in female school sports to stand.
All three liberal justices ― Sotomayor, Elana Kagan and Ketanji Brown Jackson — dissented in part. While they dissented from the majority’s finding on the Equal Protection Clause, they agreed with the court’s conservatives on Title IX.
In her dissent, Sotomayor discussed the “immense” benefits of playing sports.
“The majority’s opinion ends by reciting the many wonderful ways in which playing sports can be valuable to young people,” Sotomayor said from the bench. “It can help build resilience, tenacity, leadership, and discipline. It can lead to life-long friendships, community, and a sense of belonging. It can bring joy and the thrill of victory, along with all the lessons one learns from experiencing defeat. The benefits are immense.”
With Tuesday’s ruling, trans student athletes will now be excluded even when the facts show they do not have an “inherent athletic advantage,” she said.
“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 argued. “In the end, to the Court, the facts do not matter, even though the consequences are serious. The ban is absolute, so B. P. J. cannot practice on girls’ teams, even if she would not take anyone’s spot in an eventual competition, even if everyone who tries out for the team makes it, and even if having the chance to participate could aid immensely in treating B. P. J.’s gender dysphoria. Sports, of course, are often zero sum, but the law need not and should not be.”
“Because the Court today errs by reducing the burden, at least in the sports context, that the Constitution places on state actors when classifying based on sex, I respectfully dissent,” Sotomayor concluded.