A Narrow SCOTUS Ruling Ensures Trans Athletes Remain a Campaign Issue

On Tuesday morning the Supreme Court handed the right the decision it has spent years pursuing — and a narrower one than the victory laps suggested. In West Virginia v. B.P.J., decided together with Little v. Hecox, the Court ruled 6–3 that states may bar transgender girls from girls’ and women’s school sports without running afoul of Title IX — the 1972 law guaranteeing equal educational opportunity regardless of sex — or the Constitution’s guarantee of equal protection. Justice Brett Kavanaugh wrote the majority opinion. The three liberal justices dissented from its core.

The operative word: may. Kavanaugh wrote that states “may maintain women’s and girls’ sports for biological females.” The Court did not compel a single state to do anything; it only allowed it. That narrower holding — permission, not command — got lost in the headlines. The Court banned nothing. It removed a legal obstacle that lower courts had used to block some state bans, and left the bans where it found them: twenty-seven states have passed one over the past six years; twenty-three have not. A state that wants to keep letting a fifteen-year-old run cross-country can keep letting her. Nothing in seventy-seven pages forces its hand.

Which raises the question the celebrations skipped past: if the Court meant to take a side, why take it this way?

A Court that wanted to end this fight had two clean ways to do it. It could have read the Constitution to protect transgender students, as the Fourth Circuit did for B.P.J., and struck the bans down everywhere. Or it could have done what the right openly fantasizes about — a national ban in every state at once. It chose neither. It blessed the bans where they already stand — the states where Republicans already hold the legislature — and left everyone else to keep fighting about it.

The majority wrapped the punt in the language of restraint: drawing the line on who plays, Kavanaugh wrote, belongs to “the legislatures and the schools,” because “the Judiciary is not the proper institution” to decide it. Nobody should mistake that for modesty. Whatever the justices intended, the ruling hands candidates a gift. A ruling that settled the question would have taken the question away; this one keeps it alive in all fifty states. It lives in the twenty-three without bans, where a Republican running for governor or the legislature can now promise to pass one and point to the Supreme Court for cover. It lives in the twenty-seven that already have them, where the bans harden into permanent campaign trophies. It lives in every primary where a candidate needs a wedge. The Court did not retire trans kids as an electoral issue. It renewed the subscription.

The Court did not arrive here in a single step, either. Six years ago, in Bostock v. Clayton County, a differently composed bench ruled 6–3 — Justice Neil Gorsuch writing, the Court’s liberals in the majority — that firing a worker for living as transgender counted as sex discrimination. That coalition did not last. Justice Ruth Bader Ginsburg’s seat flipped months later, and the trans-rights majority went with it. Last June, in United States v. Skrmetti, the Court’s six conservatives upheld Tennessee’s ban on gender-affirming care for minors and set the rule that governs everything after: a law aimed at trans people barely has to justify itself in court. Judges give it the easy pass, not the hard look. Tuesday’s ruling picks that logic up and carries it onto the field: it leans on Skrmetti to wave the bans through, and it files Bostock under “not relevant here” — a precedent that, as Justice Ketanji Brown Jackson pointed out in dissent, “plainly applies to Title IX.” The Court buried it anyway. The same six justices, two terms running — a Court that once read trans people into a civil right now hands the states tools to read trans kids back out, one arena at a time.

And the reach goes past sports. The Court has quietly let two more anti-trans policies take effect on the same theory that decided this case — one forcing trans adults to carry passports marked with the wrong sex, another pushing trans people out of the military after years of service. Line the rulings up and they say one plain thing: the courts will not save anyone here. Not a kid who wants to run cross-country, not an adult who needs an ID that matches her face, not a sailor with nearly twenty years in. For a decade, trans people could hope a judge would step in. This Court just shut that door.

“States’ rights” sounds neutral until you notice what got handed back to the states: a population too small to outvote anyone. We have watched this move before. Four years ago, in Dobbs v. Jackson Women’s Health Organization, the Court overturned Roe v. Wade and handed abortion back, in its words, “to the people and their elected representatives” — and “the people” promptly drew a map where a woman’s rights end at a state line. The phrase sounds like democracy. It runs like a sorting mechanism. Federalism favors whoever already controls the statehouse, and when one side runs the states doing the banning, “let the people decide” hands down a very different verdict for the one percent who can never outvote the other ninety-nine. On Tuesday the Court ran the Dobbs playbook on trans kids.

Consider the size of the thing the Court spent a term on. Two plaintiffs brought these cases: Becky Pepper-Jackson, a West Virginia high schooler who started puberty blockers and estrogen in elementary school and wanted to run cross-country, and Lindsay Hecox, a distance runner at Boise State. That makes the threat: two kids who wanted to join a team. In her dissent, Justice Sonia Sotomayor noted that across the five years West Virginia’s ban has stood, Pepper-Jackson stands as the only transgender girl in the entire state who has come forward to play girls’ sports. One child. Five years. An entire act of the legislature, a federal lawsuit, and a Supreme Court argument, aimed at one child who wanted to run.

The national numbers run no larger in spirit. In December 2024, under oath before the Senate Judiciary Committee, Senator Dick Durbin asked NCAA President Charlie Baker how many of the roughly 510,000 athletes in college sports identified as transgender. His answer: fewer than ten. The entire moral emergency, the thing worth a constitutional ruling, fits in a minivan.

This ruling did not make a single child safer. It did not protect anyone’s scholarship or anyone’s spot on a team. It handed state governments a power they lacked on Monday — the power to decide, by majority vote, which kids count as girls — and trusted that the people most eager to use it went looking for it in the first place.

A power like that never stays pointed where you first aim it. A government that can pull one student off a team because most people dislike her has established that a head count suffices — the same logic that decides which books stay on the library shelf and which families count as families. You do not have to care about transgender athletes to notice you have handed someone a loaded thing.

The right’s victory laps depend on the misreading. “The Supreme Court banned men from women’s sports” — that chyron gets it exactly backward: the Court permitted, it did not compel, and any politician who claims his hand got forced just told you he went looking for the fight. Strip the misreading away and the ruling stops reading as a referendum on transgender girls. It does not ask whether a transgender girl should make varsity. It asks whether a state legislature and a county school board belong in the business of inspecting fifteen-year-olds — and most parents answer that one the same way the moment the fifteen-year-old becomes their own daughter.

The fairness frame exists to keep that question from getting asked. The right wants the fight to turn on fairness, because the right wins that fight, even with people who would never vote Republican. But the frame falls apart the moment you look at who these laws actually catch. They draw their line around “biological sex” — less a coherent definition of “girl” than a machine for sorting transgender people out. I wrote earlier this year about a transgender man playing on a women’s team in a league that bars transgender women, because its rules classified him as a woman — on the condition that he skip the testosterone that would change the classification. A rule that ushers transgender men into women’s leagues while shutting transgender women out never aimed at protecting girls. It aimed at deciding who counts as one.

The executive branch has spent the year running the same play. In April I wrote about the Justice Department suing Minnesota to bar transgender girls from school sports and to reach back into the record books and change the results of games teenagers had already played. The line from a federal lawsuit over old box scores to a Supreme Court ruling over one cross-country roster runs straight. An apparatus this size goes looking for somewhere to point itself.

And the disproportion gives it away. Nobody trains this much firepower on a handful of kids because the threat looms large. They do it because the issue pays — and nothing measures the payoff better than how little anyone actually demands it. In an April Fox News poll, fewer than one percent of voters named “wokeness and transgender issues” the country’s most important problem, and voters trusted Democrats on the subject by thirteen points — even after Republicans poured something like $215 million into anti-trans television in 2024. The right kept losing the salience fight not because it argued badly but because no one ever asked for this fight — no one but the people who profit from having it to run on.

None of this wins the sports debate. I will say so plainly, because pretending otherwise marches advocates into the same wall every time. Most Americans — including plenty who would never vote Republican — back some version of birth-sex eligibility in girls’ sports, and the number has drifted the wrong way for years. On the bare question of who plays, our side keeps losing ground, and will keep losing it for a while. So forget winning that argument. Aim narrower and more achievable: deny the right the story it sells — that the fight has ended, that the outcome always loomed inevitable, that everyone should move on. The fight has not ended. Twenty-three states still haven’t passed a ban. Every legislature that passes one from here forward chooses to, with no one forcing its hand, on behalf of a danger that fits in a minivan.

The fear underneath the polling did not come from nowhere. Somewhere a mother genuinely dreads that a scholarship — the one that decides whether her daughter goes to college at all — could come down to a race against a transgender girl. That fear deserves a real answer, and the real answer points it the other way. A single athletic scholarship carries the weight of a whole future only because college now costs more than the families who need it most can pay — and the politicians waving this ruling have done precisely nothing about that. They have handed those parents a transgender teenager to blame instead. The nightmare they sell — your daughter, denied her shot — pins real anxiety on an imaginary culprit. In a country where a kid’s whole future did not hinge on one scholarship, no one would have a nightmare left to sell.

And for almost everyone these laws actually reach, a scholarship never entered into it. Sotomayor’s dissent paused to set down what sports give a kid: resilience and discipline, yes, but also “life-long friendships, community, and a sense of belonging.” Pepper-Jackson turned to a team at eleven — the age when a sport means just the thing your friends do after school, the Saturday game, the bus to the meet, the ordinary fact of belonging on a roster with the other kids. That marks the scope of the world these bans shrink. Not a podium. A place to belong, withheld from a child because a majority would prefer she go without.

She saw where that same reasoning leads. “To the Court,” she wrote, “the facts do not matter, even though the consequences are serious.” West Virginia wrote an absolute ban. It applies, she pointed out, even to a girl who would not take anyone’s roster spot, even on a team where everyone who tries out makes it, even when keeping her off does nothing for anyone and something cruel to her. The majority did not dispute any of that. It just handed the question back to the legislatures that wrote the bans in the first place.

We called this a pretext from the start. For three years, every time someone called it fairness, the people closest to it called it the next election — and every year since has proved us right. Knowing it has not made it hurt less, and it has not made it stop. What changes now happens in the states: in legislative sessions, in the twenty-three places where the question stays open. The Court left it on the table, and that cuts both ways. No one in a robe ended this fight with a phrase you can’t appeal. And the people who decide it next do not sit on a bench in Washington. They sit in a state house you can name, on a school board you can show up to, in a governor’s race you can work.

Becky Pepper-Jackson wanted to run cross-country. That made up the whole case. Five years and one Supreme Court later, it still amounts to exactly that — and in twenty-three states, a girl like her still can.