NORTHAMPTON — Legal experts and transgender advocates in Massachusetts denounced Tuesday’s Supreme Court decision to uphold state laws barring transgender girls and women from playing on school athletic teams, calling it another effort to chip away at the civil rights for transgender people.
“This is why we can’t afford to other trans people,” said Ali Wicks Lim, a Montague resident and founder and director of the volunteer organization Rainbow Organizing and Response. “This is why we need to stand with them and name and acknowledge the targeting that is going on.”
The court’s six-justice conservative majority, which has repeatedly ruled against transgender Americans in the past year, ruled that state bans in Idaho and West Virginia don’t violate the Constitution. Three justices were in the minority.
The entire court, however, unanimously agreed that barring transgender girls and women doesn’t run afoul of the federal law known as Title IX, which prohibits sex discrimination in education.
Justice Brett Kavanaugh wrote for the court that, “states may maintain women’s and girls’ sports for biological females.”
Despite attempts to frame the ruling as a victory for cisgender athletes, Elizabeth Sharrow, a University of Massachusetts Amherst professor in the School of Public Policy, read the ruling as an antiquated interpretation of Title IX. The rhetoric of separating transgender and cisgender women based on any biological differences, Sharrow said, discredits the athletic ability and validity of all female athletes.
“It’s just profoundly sexist to argue that girls and women in sports require some athletes get kicked off the team in order for them to have the opportunity that they deserve,” Sharrow said. “It’s just a frame that denies the notions of equal opportunity that I think the folks who wrote Title IX initially, would have had in mind.”
More than two dozen other Republican-led states have adopted bans on female transgender athletes, and the Supreme Court’s decision seems certain to extend to them as well, experts said.
However, state laws permitting transgender athletes to compete consistent with their gender identity came out of the decision unscathed. ACLU Massachusetts Legal Director Jessie Rossman said this case was specifically about bans under federal law, not rights enabled by state regulations.
“The first footnote makes clear that this decision was not speaking to whether states and municipalities could enable trans athletes to participate in school sports consistent with their gender identity,” Rossman said.
Massachusetts laws and regulations require schools to establish safe and inclusive environments for all students. Discrimination based on gender identity is prohibited, and students must have an opportunity to participate on the sports team that is consistent with their gender identity.
“This decision further marginalizes transgender students by allowing states to deny them the ability to participate in school athletics as their authentic selves,” Massachusetts Attorney General Andrea Joy Campbell said in a statement. “Allowing blanket policies that exclude transgender students from school sports does not ensure fairness or create inclusive school environments; it instead marginalizes and harms vulnerable students.”
Any further implications of the ruling statewide are in the hands of the Massachusetts Interscholastic Athletic Association, Gov. Maura Healey told the press on Tuesday.
“In terms of how this plays out in sports — again, I have to look at the decision — but also that’s something for the MIAA because I think the decision also left it to state agencies and authorities to sort through that,” Healey said.
Jo Erwin, CEO of Northampton-based Transhealth, said in a statement that the Supreme Court decision “targeting transgender women and girls is discriminatory and deeply harmful. Everyone deserves the opportunity to participate in school sports and to play on a team that reflects their gender identity. Equal access should not be up for debate and Massachusetts law, which is not changed by this decision, agrees with us.”
The case
At the center of the decision are two transgender athletes from separate cases. Becky Pepper-Jackson, a 16-year-old high school sophomore in Bridgeport, West Virginia, challenged the belief that she has physical advantages over cisgender athletes because she transitioned early. She has been taking puberty-blocking medication, has publicly identified as a girl since age 8 and has been issued a West Virginia birth certificate recognizing her as female.
In the Idaho case, Lindsay Hecox sued over the state’s first-in-the-nation ban for the chance to try out for the women’s track and cross-country teams at Boise State University. Her lawyers wanted the court to dismiss the case because their client had ceased trying out for women’s sports teams.
The cases also revived a decades-old debate over the scope of Title IX, the landmark federal law prohibiting sex discrimination in education. None of the original 37 words of the 1972 legislation relate to sports.
Athletics became a large part of Title IX when Congress discussed implementing the landmark civil rights law, Sharrow said. Feminist groups debated whether separating men and women in sports would benefit or detriment the success of women in the long run. Ultimately, segregation won out.
“They [the majority opinion] want some space between elements of civil rights law that historically have protected sex discrimination, including discrimination against trans people,” she said, “And to suggest that Title IX doesn’t apply there. The majority opinion seems to be that the history of segregation justifies that.”
Similarly, Tuesday’s Supreme Court decision predicates on conservative notions of gender and sex. Kavanaugh and concurring Justice Neil Gorsuch’s opinions essentially remove the significance of gender identity, narrowing in on physical differences between “biological sex.” It is an argument, Sharrow said, often used by right-leaning lawyers.
“The majority says discreetly in the opinion today that they do not believe that such protections exist at the federal level for trans people,” Sharrow said.
With another civil rights protection designated to the states, Wicks Lim notes the states are now left to defend their citizens’ rights against the federal government, a reality that both disappoints them, and empowers them to rally around transpeople.
“This is a time where we as a community need to unify around trans people and let them know that the Supreme Court does not speak for all of us,” Wicks Lim said.
