Kavanaugh

WASHINGTON  — The Supreme Court on Tuesday upheld laws in West Virginia and Idaho that forbid transgender athletes from competing on girls’ sports teams.

In a 6-3 decision, the court said the federal Title IX law envisioned separate teams for girls and boys based on their biological sex at birth.

“Separate sports teams for biological males and biological females are reasonable,” wrote Justice Brett M. Kavanaugh. “Given the inherent physical differences between the sexes, allowing only biological females to play on women’s and girls’ teams can reduce the risk of physical injury and ensure fair competition.”

Kavanaugh, who has coached girls’ teams for many years, said 27 states have adopted laws prohibiting transgender athletes on girls’ teams.

But his opinion does not say states such as California must change their laws that forbid schools from discriminating based on gender. Instead, he stressed states are free to make their own decision.

“Consistent with Title IX and the Equal Protection Clause, we hold that the states may maintain women’s and girls’ sports for biological females. They may determine eligibility for women’s and girls’ sports based on biological sex. The Constitution and Title IX do not require an overhaul of women’s and girls’ sports throughout America,” Kavanaugh said.

Justice Sonia Sotomayor dissented in part. She said the state should have considered transgender students on a case-by-case basis to decide whether they had an unfair advantage. Justices Elena Kagan and Ketanji Brown Jackson dissented as well.

The court’s decision is likely to bolster the Trump administration’s drive to pressure states, schools and universities that permit transgender athletes to compete on girls’ and women’s sports teams.

Because the Education Department provides federal funds to these states and schools, it can require them to comply with Title IX.

The sole plaintiff in the court case was Becky Pepper-Jackson. Now 15, she has carried on a lonely legal fight to compete on her school’s track team in Bridgeport, W.Va.

Designated male at birth, she says she is the only transgender girl competing in her state and has been the target of complaints and protests.

Her case drew strong reactions on both sides of the issue.

West Virginia Gov. Patrick Morrisey hailed Tuesday’s decision as “one of the most important victories for women’s athletics” since the passage of Title IX in 1972.

“We defended a simple principle most Americans instinctively understand — that women’s sports exist to provide women and girls a fair opportunity to compete and succeed,” he said.

Penny Nance, president of Concerned Women for America, said “it is self-evident that males and females are biologically different, and the U.S. Supreme Court has confirmed this truth. It is fundamentally unfair for a male who feels like a female to demand that biological categories be ignored to accommodate his desire to compete among females.”

Joshua Block, the ACLU attorney who argued the case, called it “a heartbreaking ruling for our clients and transgender girls like them who’ve asked for nothing more than the same opportunities afforded to their peers,” he said.

“The reality is that the equality of transgender women and girls takes nothing away from, and in fact promotes, the equality of all women and girls.”

“This ruling is deeply harmful for transgender women and girls who only asked for the ability to participate in sports with their peers,” said Sasha Buchert, senior attorney with Lambda Legal. “Countless studies have demonstrated the myriad benefits that come with participation in team sports.”

The sports career of Becky Pepper-Jackson reflects some of the difficulty of the issue.

In sixth grade, she participated in cross country and described herself as slow. She “routinely placed near the back of the pack,” her attorneys told the court.

Her court appeals focused on a wish to participate in sports, not to win. But upon reaching high school, she has been winning.

In 2024, she “placed in the top three in every track event in which B.P.J. competed, winning most,” the state’s attorneys said. In the spring of 2025, “focusing on strength events, B.P.J. bumped female competitors out of the state tournament, then placed third in the state in discus and eighth in shot put while competing against much older female athletes,” they told the court.

Her ACLU attorney explained she has been winning in the shot put and discus “through hard work and practice,” not because of an advantage based on biology.

He said she “received puberty-delaying medication and gender-affirming estrogen that allowed her to undergo a hormonal puberty typical of a girl.”

Just one of the nine Supreme Court justices thought it was appropriate for Roger Goodell — whose primary job as NFL commissioner is to protect the league — to decide whether the NFL’s hiring practices are still racist.

And it happens to be the same justice whose close friend is an NFL owner.

In fact, the friendship between Justice Brett Kavanaugh and Arizona Cardinals owner Michael Bidwill dates back decades, to high school. So when President Trump nominated Kavanaugh for the highest court in the land, Bidwill used the team’s official website to advocate for his confirmation. Not sure how the “stick to sports” crowd feels about it, considering how they react when players express opinions, but it felt like an overreach to me.

Obviously when a decision related to NFL owners came before the court, Kavanaugh should have recused himself. But by now we’re used to justices ignoring their own ethics rules. What I find most disturbing in this instance is Kavanaugh’s dissent.

Here’s how the hiring discrimination case came to be: Former New England Patriots head coach Bill Belichick texted the wrong Brian with congratulations for getting the New York Giants’ head coaching job, according to a lawsuit filed by former Dolphins head coach and former Patriots assistant coach Brian Flores, who is Black. In the 2022 suit, Flores said the Giants interviewed him for their vacant head coaching job under disingenuous circumstances. How can we tell? Because Belichick’s congratulations came three days before Flores’ interview with the Giants. The team had apparently already decided to hire Brian Daboll, who is white.

The NFL has spent the last three-plus years attempting to settle the dispute through NFL-controlled arbitration and fought to keep it out of court. The league lifted its appeal to the Supreme Court after failing to get Goodell in position to handle it via the lower courts.

In addition to the damning text exchange, Flores also has history on his side.

During one 60-season stretch, the NFL had no Black head coaches. To address the glaring discrepancy, the league established the “Rooney rule” in 2003, requiring teams to interview at least two minority candidates for head coach and other senior management vacancies.

Prior to that, most teams interviewed only white men.

The results have been mixed.

Yes, more minority candidates get interviewed now — perhaps after a white man has quietly been chosen for the job, but still … they get interviewed.

And yes, Tony Dungy and Mike Tomlin, both of whom are Black, not only got hired but also led their franchises to Super Bowl victories after the rule was put into place.

Still, two decades into the Rooney-rule era, roughly a third of the league’s owners had never hired a minority to lead their team. This includes the century-old New York Giants, who after firing Daboll at the end of the season, hired another white man to take his place. This is the backdrop of the discrimination lawsuit filed by Flores.

And still Kavanaugh felt this case could be handled internally by the organization that allowed it to happen.

Even Clarence Thomas, a judge known for ruling against anything that helps Black people, thought the NFL should have to defend itself in court.

Consider this: The year before Flores filed his suit, the NFL settled a different discrimination lawsuit for $1 billion. That case arose because for decades, to help determine the payout from a concussion settlement between retired players and the league, the NFL used “race norming” — a methodology that assumes Black players are less intelligent than white players, making it more difficult for Black men to prove brain damage than white men. In a league that is roughly 70% nonwhite, the racist practice saved the billionaire owners millions.

Or how about this: After the Supreme Court ruled that Duke Power Co. used a controversial cognitive test to prevent Black employees from getting higher-paying jobs back in the 1970s, the NFL began using it. The league kept it in place until 2022.

And still Kavanaugh felt the league should handle Flores’ case.

I’m not sure what factors the justice was considering before his dissent, but it could not have been league history.

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