The Supreme Court ruled on Tuesday that states may bar transgender women from competing on women’s sports teams at secondary schools, colleges, and universities. More than two dozen states have laws barring trans athletes from competing on teams that do not align with their sex assigned at birth.
The results were not surprising. Two years ago, during oral arguments in another case that ended in a major defeat for transgender rights, Justice Brett Kavanaugh made it very clear how he would vote if anyone brought a case involving trans athletes to his Court.
If trans people were given heightened constitutional protection, similar to the kind of safeguards the Constitution provides against laws that discriminate on the basis of sex, then Kavanaugh worried that trans women would gain a right “to play in women’s and girls’ sports … notwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes.”
His concerns were amplified by Justice Amy Coney Barrett, a conservative Republican who sits close to the center of this very conservative Court, when the Court issued its decision in United States v. Skrmetti (2025). Barrett wrote a concurring opinion arguing that trans people do not enjoy any constitutional protections beyond those enjoyed by any other American.
Both Kavanaugh and Barrett’s statements were a warning to trans litigants about what would happen if they brought the question of whether transgender women may play on women’s sports teams at the high school or college level to the Supreme Court. Yet two of those cases, which were consolidated under the name West Virginia v. B.P.J., wound up before the Supreme Court anyway.
On Tuesday, B.P.J. reached its inevitable conclusion. In an opinion by Kavanaugh, which was joined by all five of the Court’s remaining Republicans, the Court ruled that states may bar trans women from women’s sports. Both of these cases were filed years ago, and the plaintiffs did receive fairly favorable rulings from lower courts, even as justices like Kavanaugh and Barrett dropped hints that those lower court decisions were doomed.
But both the Court, and the Republican Party more generally, have grown much more openly hostile to trans people in the last several years. So it’s been clear for a while that B.P.J. would not end well for trans rights if the case were not settled or dismissed before it reached the justices.
Indeed, the result in B.P.J. was so clearly telegraphed by the Court that one of the plaintiffs took the hint. The Court actually decided two trans sports cases on Tuesday, although they consolidated both into a single opinion. The plaintiff in one of those cases, Lindsay Hecox, made the wise decision to ask the justices to dismiss her case after those justices said they would hear it — though Kavanaugh’s opinion denied this request in a footnote.
Though the three Democratic justices dissented, their dissent was fairly feeble. Justice Sonia Sotomayor, who authored the primary dissent, argued that the case should have been sent back down to lower courts to conduct additional factfinding — which may or may not have bolstered the case for trans rights.
B.P.J. does not mean that the battle for trans rights is over. After B.P.J., trans people and their supporters remain free to lobby state and federal lawmakers, to support candidates for elected office who are sympathetic to their causes, and to otherwise try to advance trans rights through the democratic process.
But B.P.J. is a warning that the judiciary is not a friendly forum for trans people. And trans litigants are likely to lose future federal court cases if they continue to ask a Republican-dominated federal judiciary to expand trans rights.
The Supreme Court has handed down one pro-trans decision, and that case was very unlike B.P.J.
Supporters of trans rights had some reason for encouragement when they began their legal journey: The Supreme Court’s 2020 ruling in Bostock v. Clayton County, the one major victory the Court has thus far handed to trans people.
But Bostock turned on very different legal issues than B.P.J., making the fight for inclusion in sports a much tougher lift from the outset.
Bostock held that a federal law barring “sex” discrimination in employment prohibits employers from discriminating against LGBTQ people. Though the Court understood the word “sex” to refer to sex assigned at birth (or what Kavanaugh insists on calling “biological sex” throughout his B.P.J. opinion), a majority of the justices concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The idea is that if Ralph is able to date Jeanene, but Juanita is not, then Juanita is being treated differently because of her sex. Similarly, if a cisgender male employee may wear stereotypically male clothes, use a male name, and otherwise present as male, then an “employee who was identified as female at birth” must also be allowed to do so, or they are also being discriminated against because of their sex.
But, as Kavanaugh points out in his B.P.J. opinion, while federal law prohibits sex discrimination in employment, it “authorizes separate men’s and women’s sports teams” at high schools and universities. So Bostock does not help trans athletes in a case like B.P.J. because sex discrimination in sports isn’t illegal.
Without Bostock to fall back on, the plaintiffs in B.P.J., who are both trans women who wished to play women’s sports, had to persuade the justices that there is some other reason why they face unlawful discrimination. They wound up arguing that not all trans women should be allowed to play on women’s teams, but only trans women who have received medical treatments that reduce their testosterone levels so that they are at normal levels for cisgender women.
The idea was that there are some trans women who have not gone through male puberty or otherwise do not enjoy a competitive advantage over other women, and that these trans women should be allowed to play women’s sports.
But, as Kavanaugh writes, the law permits states to use the blunt instrument of having one team for men and another team for women, regardless of the fact that some men are less capable athletes than many women. This principle, he argues, carries over regardless of an athlete’s gender identity. As Kavanaugh puts it, “in the distinctive sports context … the States may treat all biological males the same and treat all biological females the same.”
The bottom line, in other words, is that this Court appears unwilling to give trans people any rights that they did not already receive in the Bostock opinion. Trans litigants may sometimes prevail in contexts where sex discrimination is prohibited, but in spaces where the law may discriminate on the basis of sex, it may also discriminate against trans women.
So where can trans people go from here?
In the end, B.P.J. is a reminder that, so long as the Republican Party controls the Supreme Court, liberal political movements have fewer options than conservative ones. Republicans and right-leaning interest groups have the option of filing federal lawsuits asking the courts to bend the law in their favor, while Democrats and left-leaning causes can’t even trust this Court to apply existing precedents that protect their rights.
Again, that doesn’t mean that trans people are cooked. But it does mean that, like all groups that are favored by Democrats and disfavored by Republicans, they are more likely to prevail in forums that are controlled by the Democratic Party.
Indeed, one way that trans rights groups can potentially advance their goals is by changing the makeup of the federal judiciary. If Democrats win control of the Senate this November, they can halt all confirmations of Trump judicial appointees and prevent the federal judiciary from growing even more hostile to liberal causes such as trans rights. If Democrats win the presidency in 2028, they may be able to replace justices who joined Kavanaugh’s B.P.J. opinion with friendlier faces.
But, until that happens, B.P.J. isn’t just a lesson for trans rights advocates, it is a lesson for nearly everyone on the political left. The Supreme Court is a hostile place for Democrats, it often ignores the law to advance Republican causes, and many of the Republican justices treat even the most settled legal principles with contempt.
If you are an advocate for a left-leaning cause of any kind, it is a good idea to stay far away from this Supreme Court if you can.
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