Discussing Trans Sports at the Supreme Court
Two trans experts Assigned spoke with expect a narrower ruling from a court whose appetite for harming trans people may have ebbed.
by Riki Wilchins
Last week, the Supreme Court heard arguments on a challenge to laws banning trans girls and women from playing women’s sports. Observers have mostly agreed the court is likely to uphold these bans. Riki Wilchins spoke with two trans legal experts about the case and what the silver linings might be for trans rights.
Assigned Media: So, what was your first impression?
Naomi Schoenbaum: It’s a little tangential, but that there's been extremely little media coverage and almost no opinion pieces. I guess I read it more negatively because I think it's because the left-leaning media has shifted on these issues and feels differently on athletics.
Ezra Ishmael Young: It felt nothing like the Bostock decision [which struck down LGBTQ+ employment discrimination in 2020] or Gavin Grimm's case [when he was forced to use the girls’ restroom in 2018]. Which is good, because if you're in the crosshairs of the Supreme Court like trans people are right now, you kind of don't want people talking it up and making it seem like a bigger issue than it is.
AM: Coney Barrett seemed to echo one of your core concerns, Naomi, that once the Court starts carving out exceptions to sex non-discrimination laws by arguing that one sex has more or less physical ability, they’re inevitably going to start carving exceptions into women's rights laws. So there seemed to be every indication that this is going to be a narrow ruling on the facts rather than setting a broad Constitutional precedent.
Ezra: It's going to be narrow, narrow, narrow. I counted. All of the Justices, including Thomas and Alito, were all like narrow, narrow, narrow, specific.
Naomi: The statute has specific text that says you can't discriminate on the basis of sex. But there are also regulations that the Department of Education has adopted which say you can discriminate based on sex in certain sports. So, there was a lot of discussion of the meaning of these regulations.
Ezra: I was heartened by a lot of the oral argument. It was definitely a different tone. I think the media strategy of the left has not been bad here. Don't sensationalize this. Don't make this seem like a darling issue of the left. We don't even need to call it a civil rights issue, even though it is. This is just a legal challenge. Judges use your basic tools in your toolbox to assess whether any of this makes sense. So, I think you were right, Riki, about Justice Barrett.
Naomi: There were repeated questions from justices on both the left and right to the effect of, How would we cabin this? What would this mean for chess or math class and so on?
AM: In other words, How could this ruling be limited so it isn’t broadly applied to everything kids of both sexes compete in at school? I was particularly struck by a quote from Gorsuch that was one of many that referenced what might be called the Slippery Slope of Sex, to the effect that once you allow individualized carve outs that could, “undermine the justification for the separation itself” so that once courts require exceptions, the entire edifice for having separate boys and girls teams could begin to unravel. Something that struck me was the justices and attorneys did not have a good working definition of sex. I think seeing Becky Pepper-Jackson forces you to rethink if sex is just chromosome and the gamete production but also hormones, morphology, etc. I see Ezra's not agreeing…
Ezra: I wouldn't take them literally. All justices feign ignorance to try to solicit more information from you. Gorsuch's big contribution during Bostock was that we don’t need to define sex to know there's discrimination on the basis of sex.
Naomi: This is where I'm going to come in add I'm not cleanly pro the plaintiffs’ approach. It’s one of the complications of challenging a law as applied; These state laws say that they may or must discriminate on the basis of sex in sports. That is not at issue here. All they’re saying is that Lindsay and Becky were put in the wrong group: I am a trans girl and I should be able to play on the girls team. It’s not the law but it’s application.
AM: As I understand it, courts like these as applied challenges, since they tend to result in narrow rulings that avoid striking down entire laws wholesale or setting broad precedents.
Naomi: To me, these laws are absurd in a variety of respects, which did come up in the argument and I was very happy about that. For example, Idaho’s applies as young as possible, I think even Justice Barrett brought up that you could segregate kindergartners by their sex and it also applies to any level of competition, including club sports where there are no stakes. So Kavanaugh is talking about how this is a zero sum game and that people really care about that, but these laws also apply to things where nobody cares.
AM: And then you have cases like trans man Mack Beggs, who was forced to compete on girls teams in Texas and won the state championship. I didn’t think there was a lot of focus on that.
Ezra: The answer was that the specific laws challenged here only force trans girls to play on boys’ teams. They're not specific to trans boys.
Naomi: Since there's a model law that they pretty much all copy, I think it's like 27 states that all only regulate girls and not boys.
Ezra: Mack was one of the best wrestlers in Texas at the time and he repeatedly won the girls’ wrestling titles year after year. He was recruited to wrestle for a men's university wrestling team; he was that good. He actually got sued by the parents of cis girls who had to wrestle against him. Justices Barrett and Jackon brought it up that, This isn't only targeting trans people, just specifically trans girls. What do we do with that?
I see a big change from where Justice Barrett was when she wrote her concurrence in Skrmetti just a few months ago. That reflects something might be going on with her, and I don't think we should undervalue it, especially when we have to court people like her.
AM: There were a number of questions about whether a trans girl identifying as a girl was sufficient. It seems to me that we’ve pushed the concept of gender identity as far as it can go legally, and we need some other, or at least some additional basis, for arguing that trans girls are girls. For Becky, it’s clearly more than just her identifying as a girl: she’s had a female puberty, she has breasts, and essentially a female body, she lives her entire social existence as a girl. We need a legal concept that recognizes and utilizes that instead of just relying on gender identity.
Naomi: I have a few responses. We emailed about this, Riki. There is a case on the Court’s shadow docket where they let an order for a trans boy to use the boys’ bathroom go through. They were fine with that, right? So, I do think there is a difference between the trans girls and the trans boys in their thinking.
I want to return to my point about as applied challenges. I completely understand why the plaintiffs in these cases are bringing their challenges this way as a litigation strategy.
But the problem with that is that it becomes all about biology. This is to Riki’s point: How do you decide about the boy who's a bad athlete and wants to play on the girls team? And the only response that can be given is the biological one that they still have the testosterone levels of a boy.
But that's clearly not the only reason. I mean, that whole argument to me felt absurd. Like if you were an alien who came down from outer space to listen to this argument and you kept hearing them say physical advantages are why we segregate based on sex doesn't make any sense. Like a height differential of 1 or 2ft is going to give some kids a far greater advantage in sports like basketball.
AM: Texas Tech just signed Stephanie Okechukwu, the first 7 footer in women’s college basketball. She’s actually 7-foot-1. She has vast, vast biological advantages over nearly every other college woman. In fact, any kid who’s good enough to play Division 1 or even Division 2 sports has built-in biological advantages; we just decide that some are “unfair” and others aren’t.
Naomi: There are other sports like wrestling where we do separate based on size. But they’re only a few and they’re the exception. So why do we separate based on sex? It's not physical advantage. It's because it's a social class. I found the whole argument extraordinarily frustrating because it focused only on the biological of physical differences and it just doesn't make sense.
Ezra: 50 years ago I don't think Congress, let alone sports regulators thought we'd have all these sex segregated sports. My understanding is that it was a Band-aid to require at least some sort of equivalent sports participation for women and girls. I don't think the plan was that we were always going to maintain this huge hierarchy of sex segregated sports.
AM: Every time Becky’s lawyers would argue that an exception should be made for her because she has a girls’ body, the other lawyers would argue, No, no, we can't do special carve outs for bodies the law doesn’t fit. I wrote an Advocate article ten years ago called “Transgender Dinosaurs” which argued that bodies like mine are going to eventually be the exception, and those like Becky’s are going to be the rule. People like her may be an exception today, but they won’t be that much longer, at least not in the blue states.
Ezra: Riki you and I have talked about this before, how a lot of these legal frameworks fixate on the moment of transition and very oddly imagine that every trans person is constantly caught up in the moment of transition. Not that there is a world where you're post-transition and the differences range from limited-to-minuscule. Kids like Becky are pushing people to see this.
It's important to point out that there are non-trans girls whose bodies are different in lots of ways and they will get ensnared by this. In the earlier Idaho cases, it was cis girls who were caught in this. They didn't want genital inspections, they didn't want all this other stuff.
AM: I believe they chose the moment of transition because it’s legally the very weakest point for arguing for the primacy of gender identity and First Person Authority to announce who and what you are.
Ezra: This argument by the advocates that the law is only wrong as applied to these two plaintiffs didn’t make any sense. The justices were like, Shut up. We're laughing at you now because this is so dumb. Stop bringing it up. But the ACLU and the other attorney were like arguing narrowly, Why are you asking for this bizarre line drawing? We're looking at your actual clients. It's whether they win or lose, so why do we need to do more than that? And I think that was right for different reasons that have nothing to do with trans rights. I think it's important for the Court to look at the case in front of it and to decide that case. We don't want to think about trying a fix that works with every single case that might arise. You want to work on the facts of the case in front of you, the specific law, the way it's written, the specific way it's been enforced, how it is or is not unfair.
AM: I found the argument that states can’t be bothered to make exceptions for singular cases entirely disingenuous because both plaintiffs were extreme exceptions already. There are probably 5,000 trans kids in Idaho, and Hecox was the only one known to be competing. There's probably about the same in West Virginia. Becky is the only one who’s out. So, states are crafting laws around single individual exceptions, but then arguing to adjudicate these laws in ways that say making exceptions is too big a burden. It’s ridiculous – but I didn’t hear anyone making that argument.
Ezra: I agree. In all sorts of contexts, most laws of any kind should have a safety valve. Because there's always the weird exception in which it’s going to be demonstrably unfair and wrong. A lot of cases go to the Supreme Court in different areas where their complaint is that the government didn’t allow a safety valve for unfair situations. That's just a bedrock part of American law that we allow for safety valves.
The Republican Party today is trying to push for is a false history of what it has been like to be trans in the United States, and what it has been like to have sex regarding laws in the US. The definitions they're trying to use like hormone levels, chromosomes, advantages and stuff. We had no idea what those things were until very recently, so that could not have been the basis historically for any of this stuff, right? We did not have uniform vital records and birth certificates until the turn of the 20th century, and even then they were pretty spotty. People relied upon what their socially recognized sex was.
And guess what? People have long accommodated trans people. Sex was literally what does the parish record say. And priests would alter those when trans people existed. How do we know? Because we have records of that, right? The Right is trying to argue that science has decided definitively X, Y, and Z. And even the conservative justices were pushing back, saying Isn't there disagreement in the field? If there's a disagreement, why should the Court step in and say this or that about sex? What the Right is trying to do is achieve a legal outcome by getting around the fact that their definitions of sex are tautological.
AM: The sponsor of that first bill in Idaho warned the stadiums would be empty because trans girls would have taken over women’s sports. Then she told an A/P reporter she didn’t actually know of a single trans female athlete anywhere in the state. Lindsay Hecox turned out to be the only one—and she was so “dominant” that she failed to make Boise State’s women track team when she enrolled the following year.
Ezra: Laws like this are literally going to disincentivize [cis] girls because they're going to be under hyper scrutiny. If they want to sign up for a sport they win at they have to worry someone will challenge their sex. That's the new generation of these laws that we're seeing where there is a private right of action to challenge an individual medalist because you want to confirm their sex is. This is not what Title IX was ever about. It was never about guaranteeing a medal more easily, it was to enable more women and girls to have the opportunity to compete and participate—not their right to win.
Ezra: I think the Court might be having some regrets about how they decided Skrmetti. I think they might have thought if they just gave a pound of flesh to the anti-trans side, people would calm down and there would be less fights. And I think they're seeing that it incentivized just the opposite that the Right is going to push even harder. To me the oral arguments sounded different.
Naomi: I'm much more optimistic. And the big difference was justices on the right, like Gorsuch and Barrett repeatedly wanted to put limits on how far the Right has gone on this. They were very worried that going against trans rights would lead to more discrimination against trans people and more sex segregation and be bad for women. So, I thought this argument was much better.
Ezra: These justices all live through and witnessed people benefiting from Title IX. Despite some failures in implementation, most people will agree has done a lot of benefit for women and men over the last 50 years. And I think many of them felt it was really weird to invoke this law to demand more discrimination; segregation upon segregation upon segregation. All of the justices seemed genuinely and rightly skeptical of that because there was no limit, Oh, this will only be trans people. I think they could see this how could escalate. Justice Gorsuch was saying, I don't trust you because I don't see any limiting factors on this rule that you're demanding.
AM: Ezra you’re quoted in The Advocate saying that elite trans athletes are going to have to navigate this like Black athletes did during the racial segregation. Like when Jackie Robinson went to UCLA, because it wasn’t segregated and he could play there. Naomi, do you agree?
Naomi: Sure, at the elite level, but in the lower level if you're a trans girl growing up in Idaho or West Virginia you’re going to have a hard time getting the experience and practice and training before college.
Ezra: That's the same thing that Black Americans had to deal with when they couldn’t join Little Leagues and so on. Nonetheless, communities found ways to carve out spaces. It doesn't mean that it's not harder. It doesn't mean that it's not unfair. I think part of what I was trying to get out is this isn't a zero-sum case where forever in all time trans people are royally screwed. There's still the possibility of survival and carving things out, right? That's something that sometimes younger trans people need to hear because they come under this misconception that, Oh, the Supreme Court's going to literally rule against all trans people for all time tomorrow, and then everything's fucked.
Naomi Schoenbaum is the William Wallace Kirkpatrick Dean’s Research Professor of Law at George Washington University.
Ezra Ishmael Young is a lawyer and constitutional law professor in New York.
Riki Wilchins is author most recently of “BAD INK: How the NYTimes SOLD OUT Transgender Teens”