Supreme Court Justice Sonia Sotomayor delivered a strong dissent following the conservative-majority Supreme Court’s decision on Tuesday to maintain a ban on transgender athletes participating in female school sports teams.
Justice Brett Kavanaugh authored the opinion, concluding that Title IX and the Equal Protection Clause permit bans on the participation of transgender girls and women in female school sports.
The court’s three liberal justices — Sotomayor, Elena Kagan, and Ketanji Brown Jackson — partially dissented. They disagreed with the majority’s decision on the Equal Protection Clause but concurred with the conservative justices regarding Title IX.
In her dissent, Sotomayor highlighted the “immense” benefits that participation in sports provides.
“The majority’s opinion ends by reciting the many wonderful ways in which playing sports can be valuable to young people,” Sotomayor stated 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.”
Following the ruling on Tuesday, trans student athletes will be barred from participation even if evidence shows they lack an “inherent athletic advantage,” she noted.
“Due to 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. “Ultimately, 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.
