The Supreme Court on Tuesday appeared ready to uphold two state laws prohibiting transgender girls from competing on girls' sports teams, as a majority of conservative justices voiced skepticism of arguments that excluding the athletes would violate Title IX and the U.S. Constitution.
"There's strong assertions of equality interests on both sides," observed Justice Brett Kavanaugh, a father and coach of two athlete daughters. But "given that half the states are allowing ... transgender girls and women to participate and about half are not, why would we at this point ... jump in and try to constitutionalize a rule for the whole country while there’s still uncertainty and debate?"
The pair of cases, marking the first time the court was wading into the culture wars debate, involve laws from Idaho and West Virginia, both of which were blocked by lower courts on grounds they discriminated on the basis of sex in violation of federal law and the Constitution's equal protection clause. Twenty-seven other states have similar measures.
In a world guided by facts, this decision should be straightforward: a unanimous 9–0 ruling against allowing men to compete in women’s sports. However, that outcome is unlikely, largely because of ideological divisions on the Court, especially when it comes to Justices Kagan, Sotomayor, and Jackson, and what critics see as a broader shift in constitutional interpretation driven by activist judging. Hell, even some justices labeled “conservative” have, over time, shown greater sympathy toward progressive legal arguments. And as a result, conservatives should focus less on the Court's liberal wing (and all their insanity) and more on Justices Roberts and Barrett, who may prove decisive. As despite clear biological differences between men and women, the case is likely to be close, reflecting a broader tension between ideology and empirical reality.
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