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CNN
2 hours ago
- Politics
- CNN
Why Roberts and Gorsuch may decide the Supreme Court's blockbuster transgender sports case
The Supreme Court's decision Thursday to weigh in on transgender sports bans will put two conservative justices in the spotlight in coming months, both because of what they have said in past cases involving LGBTQ rights – and what they haven't. Only two justices have written majority opinions involving transgender Americans – Chief Justice John Roberts and Justice Neil Gorsuch – and both avoided revealing their thoughts about the sports cases last month when, in a blockbuster ruling, the Supreme Court upheld Tennessee's ban on puberty blockers and hormone therapy for trans youth. For the second time in as many years the high court will wrestle with a heated legal dispute involving young transgender Americans at a time when they are facing severe political backlash driven in part by President Donald Trump and conservative states. The court agreed to hear appeals in two related cases challenging laws in West Virginia and Idaho that ban transgender girls and women from competing on women's sports teams – including one that was filed by a middle school student at the time. While the court swerved around fundamental questions about trans rights in last month's decision in US v. Skrmetti, it will be far harder to do so in the sports cases. And that could put enormous focus on Roberts and Gorsuch. 'Even though the court ruled against the transgender plaintiffs in Skrmetti, it did not decide the larger and more important question of whether discrimination based on transgender status triggers more searching judicial review,' said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center. 'Everything,' Vladeck predicted, 'is going to come down to where Roberts and Gorsuch are.' In some ways, the Supreme Court's 6-3 decision on June 18 upholding Tennessee's ban on certain transgender care was limited. That opinion, written by Roberts, explicitly declined to decide if the law discriminated against transgender youth. Tennessee's policy, Roberts reasoned, instead drew boundaries based on age and medical procedures that were well within a state's power to regulate. That logic avoided thorny questions about whether the law violated the 14th Amendment's equal protection clause if it specifically targeted transgender minors for different treatment. Tennessee's law, Roberts wrote, 'classifies on the basis of age' and 'classifies on the basis of medical use.' But it will be more difficult for the court to duck those broader questions in the sports cases, several experts said. 'It is notable that the court seemed to go out of its way to avoid endorsing the idea that the law discriminated against transgender people and instead found that the Tennessee law had drawn lines based on age and medical diagnoses,' said Suzanne Goldberg, a Columbia Law School professor and an expert on gender and sexuality law. 'The new cases squarely present the discrimination questions in ways that will be hard to avoid,' she said. 'It's important,' she said, 'not to lose sight of the fact that these cases involve kids trying to make their way through school and life like every other kid.' Gorsuch, who was Trump's first nominee to the Supreme Court, joined the majority opinion in the Tennessee case but did not write separately to explain his position. His silence was significant given that one of the key arguments at stake was how – or whether – to apply the landmark 2020 decision in Bostock v. Clayton County that he authored. In that decision, the court ruled that transgender workers are covered by federal protections against discrimination based on sex because discrimination against a transgender person is, by extension, necessarily also discrimination based on sex. The Biden administration and transgender teenagers fighting Tennessee's law asserted that the same logic should apply when it comes to gender identity care bans. But the court has never extended its reasoning in Bostock beyond the workplace, and the decision drew immediate and sharp criticism from the right at the time. John Bursch, a veteran Supreme Court litigator and senior counsel at the conservative Alliance Defending Freedom, predicted that both Roberts and Gorsuch will ultimately back the state bans on transgender people participating in sports that align with their gender identity given their votes in the Tennessee dispute. 'If they were in agreement that Tennessee's law did not discriminate based on gender identity, I would assume that both of them would come to the same conclusion here when it comes to sports,' Bursch said. 'But you never know for sure, and anytime that we go to the court, we assume that all nine justices are in play.' Alliance Defending Freedom is a co-counsel in both sports cases the Supreme Court agreed to hear. 'Our hope is that we would get a unanimous ruling to protect women's sports in favor of both West Virginia and Idaho in their laws,' Bursch added. Other members of the court's six-justice conservative wing – including two who are often decisive votes – have more clearly signaled their thoughts on anti-trans laws. In the Tennessee case, Justice Amy Coney Barrett penned a concurring opinion making clear that she opposed granting transgender status the same anti-discrimination protections that race and sex have under the 14th Amendment. She also was the only member of the court's majority that day to raise sports in an opinion. 'Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy – ranging from access to restrooms to eligibility for boys' and girls' sports teams,' Barrett wrote in an opinion joined by Justice Clarence Thomas. 'If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of 'closely scrutiniz(ing) legislative choices' in all these domains.' Justice Samuel Alito wrote a concurrence arguing against extending Bostock's reasoning to constitutional cases. During oral arguments over Tennessee's law in December, Justice Brett Kavanaugh – another justice who is sometimes seen as a swing vote – mentioned sports as he peppered the lawyer for the Biden administration with skeptical questions about her position. 'If you prevail here,' asked Kavanaugh, who has frequently noted that he coached his daughters' basketball teams, 'what would that mean for women's and girls' sports in particular?' 'Would transgender athletes have a constitutional right, as you see it, to play in women's and girls' sports, basketball, swimming, volleyball, track, et cetera, notwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes?' Kavanaugh pressed. In response, then-Solicitor General Elizabeth Prelogar attempted to distinguish the sports cases from Tennessee's law. She noted that some lower courts had already held that the sports bans triggered a higher level of judicial scrutiny. Kavanaugh also dissented from Gorsuch's decision in Bostock. The court's three liberals dissented in the Tennessee case, with Justice Sonia Sotomayor writing that the majority had pulled back from 'meaningful judicial review exactly where it matters most' and instead 'abandons transgender children and their families to political whims.' In the West Virginia case, then Gov. Jim Justice, a Republican, signed the 'Save Women's Sports Act' in 2021, banning transgender women and girls from participating on public school sports teams consistent with their gender identity. Becky Pepper-Jackson, a rising sixth grader at the time, who was 'looking forward to trying out for the girls' cross-country team,' filed a lawsuit alleging that the ban violated federal law and the Constitution. The Richmond-based 4th US Circuit Court of Appeals ruled last year that West Virginia's ban violated Pepper-Jackson's rights under Title IX, a federal law that prohibits discrimination on the basis of sex at schools that receive federal aid. The court also revived her constitutional challenge of the law. Two years ago, the Supreme Court denied West Virginia's emergency docket request to let it fully enforce its ban. Alito and Thomas dissented from that decision, though the focus of their objection was that neither the Supreme Court nor the 4th Circuit had offered an explanation for their decisions. In Idaho, Republican Gov. Brad Little signed the state's sports ban in 2020. Lindsay Hecox, then a freshman at Boise State University, sued days later, saying that she intended to try out for the women's track and cross-country teams and alleging the law violated the 14th Amendment's equal protection clause. A federal district court blocked the law's enforcement against Hecox months later and the San Francisco-based 9th US Circuit Court of Appeals affirmed that decision last year. Idaho appealed to the Supreme Court in July. State officials in West Virginia and Idaho praised the court's decision to take up the cases. 'Idaho was the first state to step out and ban boys and men from competing with girls and women in organized athletics,' Little said on Thursday, describing the law as a 'common sense' policy intended to 'protect the American way of life.' Lawyers for the transgender athletes described the laws as discriminatory and harmful. The Supreme Court will likely hear arguments in the cases later this year or in early 2026 and is expected to hand down a decision by the end of June.
CNN
3 hours ago
- Politics
- CNN
Why Roberts and Gorsuch may decide the Supreme Court's blockbuster transgender sports case
The Supreme Court's decision Thursday to weigh in on transgender sports bans will put two conservative justices in the spotlight in coming months, both because of what they have said in past cases involving LGBTQ rights – and what they haven't. Only two justices have written majority opinions involving transgender Americans – Chief Justice John Roberts and Justice Neil Gorsuch – and both avoided revealing their thoughts about the sports cases last month when, in a blockbuster ruling, the Supreme Court upheld Tennessee's ban on puberty blockers and hormone therapy for trans youth. For the second time in as many years the high court will wrestle with a heated legal dispute involving young transgender Americans at a time when they are facing severe political backlash driven in part by President Donald Trump and conservative states. The court agreed to hear appeals in two related cases challenging laws in West Virginia and Idaho that ban transgender girls and women from competing on women's sports teams – including one that was filed by a middle school student at the time. While the court swerved around fundamental questions about trans rights in last month's decision in US v. Skrmetti, it will be far harder to do so in the sports cases. And that could put enormous focus on Roberts and Gorsuch. 'Even though the court ruled against the transgender plaintiffs in Skrmetti, it did not decide the larger and more important question of whether discrimination based on transgender status triggers more searching judicial review,' said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center. 'Everything,' Vladeck predicted, 'is going to come down to where Roberts and Gorsuch are.' In some ways, the Supreme Court's 6-3 decision on June 18 upholding Tennessee's ban on certain transgender care was limited. That opinion, written by Roberts, explicitly declined to decide if the law discriminated against transgender youth. Tennessee's policy, Roberts reasoned, instead drew boundaries based on age and medical procedures that were well within a state's power to regulate. That logic avoided thorny questions about whether the law violated the 14th Amendment's equal protection clause if it specifically targeted transgender minors for different treatment. Tennessee's law, Roberts wrote, 'classifies on the basis of age' and 'classifies on the basis of medical use.' But it will be more difficult for the court to duck those broader questions in the sports cases, several experts said. 'It is notable that the court seemed to go out of its way to avoid endorsing the idea that the law discriminated against transgender people and instead found that the Tennessee law had drawn lines based on age and medical diagnoses,' said Suzanne Goldberg, a Columbia Law School professor and an expert on gender and sexuality law. 'The new cases squarely present the discrimination questions in ways that will be hard to avoid,' she said. 'It's important,' she said, 'not to lose sight of the fact that these cases involve kids trying to make their way through school and life like every other kid.' Gorsuch, who was Trump's first nominee to the Supreme Court, joined the majority opinion in the Tennessee case but did not write separately to explain his position. His silence was significant given that one of the key arguments at stake was how – or whether – to apply the landmark 2020 decision in Bostock v. Clayton County that he authored. In that decision, the court ruled that transgender workers are covered by federal protections against discrimination based on sex because discrimination against a transgender person is, by extension, necessarily also discrimination based on sex. The Biden administration and transgender teenagers fighting Tennessee's law asserted that the same logic should apply when it comes to gender identity care bans. But the court has never extended its reasoning in Bostock beyond the workplace, and the decision drew immediate and sharp criticism from the right at the time. John Bursch, a veteran Supreme Court litigator and senior counsel at the conservative Alliance Defending Freedom, predicted that both Roberts and Gorsuch will ultimately back the state bans on transgender people participating in sports that align with their gender identity given their votes in the Tennessee dispute. 'If they were in agreement that Tennessee's law did not discriminate based on gender identity, I would assume that both of them would come to the same conclusion here when it comes to sports,' Bursch said. 'But you never know for sure, and anytime that we go to the court, we assume that all nine justices are in play.' Alliance Defending Freedom is a co-counsel in both sports cases the Supreme Court agreed to hear. 'Our hope is that we would get a unanimous ruling to protect women's sports in favor of both West Virginia and Idaho in their laws,' Bursch added. Other members of the court's six-justice conservative wing – including two who are often decisive votes – have more clearly signaled their thoughts on anti-trans laws. In the Tennessee case, Justice Amy Coney Barrett penned a concurring opinion making clear that she opposed granting transgender status the same anti-discrimination protections that race and sex have under the 14th Amendment. She also was the only member of the court's majority that day to raise sports in an opinion. 'Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy – ranging from access to restrooms to eligibility for boys' and girls' sports teams,' Barrett wrote in an opinion joined by Justice Clarence Thomas. 'If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of 'closely scrutiniz(ing) legislative choices' in all these domains.' Justice Samuel Alito wrote a concurrence arguing against extending Bostock's reasoning to constitutional cases. During oral arguments over Tennessee's law in December, Justice Brett Kavanaugh – another justice who is sometimes seen as a swing vote – mentioned sports as he peppered the lawyer for the Biden administration with skeptical questions about her position. 'If you prevail here,' asked Kavanaugh, who has frequently noted that he coached his daughters' basketball teams, 'what would that mean for women's and girls' sports in particular?' 'Would transgender athletes have a constitutional right, as you see it, to play in women's and girls' sports, basketball, swimming, volleyball, track, et cetera, notwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes?' Kavanaugh pressed. In response, then-Solicitor General Elizabeth Prelogar attempted to distinguish the sports cases from Tennessee's law. She noted that some lower courts had already held that the sports bans triggered a higher level of judicial scrutiny. Kavanaugh also dissented from Gorsuch's decision in Bostock. The court's three liberals dissented in the Tennessee case, with Justice Sonia Sotomayor writing that the majority had pulled back from 'meaningful judicial review exactly where it matters most' and instead 'abandons transgender children and their families to political whims.' In the West Virginia case, then Gov. Jim Justice, a Republican, signed the 'Save Women's Sports Act' in 2021, banning transgender women and girls from participating on public school sports teams consistent with their gender identity. Becky Pepper-Jackson, a rising sixth grader at the time, who was 'looking forward to trying out for the girls' cross-country team,' filed a lawsuit alleging that the ban violated federal law and the Constitution. The Richmond-based 4th US Circuit Court of Appeals ruled last year that West Virginia's ban violated Pepper-Jackson's rights under Title IX, a federal law that prohibits discrimination on the basis of sex at schools that receive federal aid. The court also revived her constitutional challenge of the law. Two years ago, the Supreme Court denied West Virginia's emergency docket request to let it fully enforce its ban. Alito and Thomas dissented from that decision, though the focus of their objection was that neither the Supreme Court nor the 4th Circuit had offered an explanation for their decisions. In Idaho, Republican Gov. Brad Little signed the state's sports ban in 2020. Lindsay Hecox, then a freshman at Boise State University, sued days later, saying that she intended to try out for the women's track and cross-country teams and alleging the law violated the 14th Amendment's equal protection clause. A federal district court blocked the law's enforcement against Hecox months later and the San Francisco-based 9th US Circuit Court of Appeals affirmed that decision last year. Idaho appealed to the Supreme Court in July. State officials in West Virginia and Idaho praised the court's decision to take up the cases. 'Idaho was the first state to step out and ban boys and men from competing with girls and women in organized athletics,' Little said on Thursday, describing the law as a 'common sense' policy intended to 'protect the American way of life.' Lawyers for the transgender athletes described the laws as discriminatory and harmful. The Supreme Court will likely hear arguments in the cases later this year or in early 2026 and is expected to hand down a decision by the end of June.
CNN
2 days ago
- Politics
- CNN
Supreme Court agrees to review bans on transgender athletes joining teams that align with their gender identity
Source: CNN The Supreme Court on Thursday agreed to decide whether states may ban transgender students from playing on sports teams that align with their gender identity, revisiting the issue of LGBTQ rights in a blockbuster case just days after upholding a ban on some health care for trans youth. The decision puts the issue of transgender rights on the Supreme Court's docket for the second year in a row and is by far the most significant matter the justices have agreed to hear in the term that will begin in October. The cases, one from West Virginia and the other from Idaho, involve transgender athletes who at least initially competed in track and field and cross country. The West Virginia case was filed by a then-middle school student who told the Supreme Court she was 'devastated at the prospect' of not being able to compete after the state passed a law banning trans women athletes' participation in public school sports. The court's decision landed as transgender advocates are still reeling from the 6-3 ruling in US v. Skrmetti, which upheld Tennessee's ban on trans youth from accessing puberty blockers and hormone therapy. Though the state law also bars surgeries, they were not at issue in the high court's case. But that decision was limited to questions of whether the state had the power to regulate medical treatments for minors, leaving unresolved challenges to other anti-trans laws. The justices agreed to review two cases challenging sports bans in Idaho and West Virginia. The court didn't act on a third appeal over a similar ban in Arizona and will likely hold that case until it decides the other two, probably by early next summer. The American Civil Liberties Union, which is part of the legal team representing the athletes in the cases, said school athletic programs should be accessible to everyone regardless of a student's sex or transgender status. 'Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth,' said Joshua Block, senior counsel for the ACLU's LGBTQ & HIV Project. 'We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.' West Virginia Attorney General JB McCuskey, a Republican, said that the state is 'confident the Supreme Court will uphold the Save Women's Sports Act because it complies with the US Constitution and complies with Title IX.' The Supreme Court will review the case at a time when Republican-led states and President Donald Trump have pushed for policies to curtail transgender rights. Trump ran for reelection in part on a campaign to push 'transgender insanity' out of public schools, mocking Democratic candidate Kamala Harris in advertising for supporting 'they/them,' the pronouns used by some transgender and nonbinary people. But even before that, states had passed laws banning transgender girls from playing on girls' sports teams. Roughly half of US states have enacted such laws. The Trump administration has actively supported policies that bar transgender athletes from competing on teams that match their gender identity. On Wednesday, the federal government released $175 million in previously frozen federal funding to the University of Pennsylvania after the school agreed to block transgender athletes from female sports teams and erase the records set by swimmer Lia Thomas. In West Virginia, former Gov. Jim Justice, a Republican, signed the 'Save Women's Sports Act' in 2021, banning transgender women and girls from participating on public school sports teams consistent with their gender identity. Becky Pepper-Jackson, a rising sixth grader at the time, who was 'looking forward to trying out for the girls' cross-country team,' filed a lawsuit alleging that the ban violated federal law and the Constitution. The Richmond-based 4th US Circuit Court of Appeals ruled last year that West Virginia's ban violated Pepper-Jackson's rights under Title IX, a federal law that prohibits discrimination on the basis of sex at schools that receive federal aid. The court also revived her constitutional challenge of the law. 'Her family, teachers, and classmates have all known B.P.J. as a girl for several years, and – beginning in elementary school – she has participated only on girls athletic teams,' US Circuit Judge Toby Heytens, who was nominated to the bench by President Joe Biden, wrote for the court. 'Given these facts, offering B.P.J. a 'choice' between not participating in sports and participating only on boys teams is no real choice at all.' Most of the appeals on the issue of transgender athletes question whether such bans are permitted under the equal protection clause of the 14th Amendment. The West Virginia case was different in that it also raised the question of whether such bans violated Title IX. The Supreme Court often prefers to settle a dispute under a law, rather than the Constitution, if it has the option because such a ruling technically allows Congress to change the law in response to the decision. West Virginia appealed to the Supreme Court last year, arguing that the appeal court decision 'renders sex-separated sports an illusion.' 'Schools will need to separate sports teams based on self-identification and personal choices that have nothing to do with athletic performance,' the state said. West Virginia initially brought the case to the Supreme Court last year on an emergency basis, seeking to enforce the law against Pepper-Jackson while the underlying legal challenge played out. In an unsigned order, the court declined that request. Conservative Justices Clarence Thomas and Samuel Alito said they would have granted it. In Idaho, Republican Gov. Brad Little signed the state's sports ban in 2020, the first of its kind in the nation. Lindsay Hecox, then a freshman at Boise State University, sued days later, saying that she intended to try out for the women's track and cross-country teams and alleging that the law violated the 14th Amendment's equal protection clause. A federal district court blocked the law's enforcement against Hecox months later and the San Francisco-based 9th US Circuit Court of Appeals affirmed that decision last year. Idaho appealed to the Supreme Court in July. 'Idaho's women and girls deserve an equal playing field,' said Idaho Attorney General Raúl Labrador, a Republican. 'For too long, activists have worked to sideline women and girls in their own sports.' But Sasha Buchert, senior attorney and director of the Non-Binary and Transgender Rights Project at Lambda Legal, stressed the importance of team sports for all students. Lambda Legal is part of the team representing Pepper-Jackson in the West Virginia case. 'Our client just wants to play sports with her friends and peers,' said Buchert said. 'Everyone understands the value of participating in team athletics, for fitness, leadership, socialization, and myriad other benefits.' This story has been updated with additional information. See Full Web Article
