OLYMPIA – Superintendent of Public Instruction, Chris Reykdal, says nothing will change for transgender school athletes in Washington as a result of today’s U.S. Supreme Court ruling, West Virginia v. B.P.J. and Little v. Hecox.
The Court upheld the right of states, 27 at this point, to ban transgender girls from participating in school-based athletics in alignment with their gender identity—conversely also upholding states’ rights to allow students to participate in athletics in according to their gender identity.
In a statement, Reykdal says, “Today’s decision reinforces Washington state’s ability to adopt and implement our own laws in alignment with our values.”
While the Office of Superintendent of Public Instruction (OSPI) does not oversee athletics in our state, the office is responsible for communicating, upholding, and enforcing the law. Athletics oversight is under the jurisdiction of the Washington Inter-scholastic Activities Association.
The Snohomish School District told EverettPost.com, “As a school district, we implement and follow state law and guidance from the state and align our policies and practices accordingly. For questions regarding the state’s interpretation of the ruling or any potential statewide guidance, OSPI would be the appropriate agency to comment.”
EverettPost.com contacted the WIAA, which released the following statement, “The WIAA is committed to following Washington state law and will continue to do so. The WIAA’s Executive Board has the authority to alter the Association’s policies to remain aligned with state law, should state law change. The decision is undergoing legal review on our end.”
Reykdal added in the statement, “While the Court’s decision does not impact Washington law, Initiative Measure IL26-638, which will be decided by Washington voters this fall, aims to institute a state ban on the right for transgender girls to participate in girls’ sports. Should voters pass IL26-638 this November, it is likely to be challenged in court. OSPI will continue to communicate any changes to state law.”
Justice Brett Kavanaugh delivered the opinion of the Court, in which Chief Justice John Roberts, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney-Barrett joined. Justices Sonya Sotomayor, Elena Kagan and Ketanji Brown-Jackson concurred with the ruling in-part but also dissented in part.
In the majority opinion, Kavanaugh wrote, “Some might ask: What is the harm in allowing an additional athlete to compete in women’s or girls’ sports? That sentiment, though understandable, misunderstands the nature and reality of sports. Sports are highly competitive and generally zero sum. At almost every turn, someone wins and someone loses. Every athlete who makes a team takes a roster spot from another athlete. Every player who earns playing time reduces the playing time of a teammate. Every player who makes the starting lineup sidelines another who remains on the bench.
Every competitor who wins a race or competition deprives another athlete of that victory, or medal, or prize.
Every team that wins because of an added player means that another team has lost because of that added player. Every player who makes all-conference beats out another player who does not. Every student who earns an athletic scholarship takes that opportunity away from another student. And so on.
In so ruling, we emphasize one last point. Most of the biological female and transgender student-athletes who are involved in transgender sports disputes around the country are teenagers or in their early twenties. Those student-athletes want to play sports. Their desire to compete warrants respect. No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified.”
The ruling involved trans-athletes in West Virginia, Becky Pepper-Johnson (B.P.J.), and Idaho, Lindsay Hecox, who sued over the respective state laws to require student-athletes to play for teams based on their gender at birth.
In today’s Supreme Court ruling, Kavanaugh writes, “The question before the Court is: Under Title IX and the Equal Protection Clause of the Fourteenth Amendment, may schools maintain women’s and girls’ sports for biological females? In other words, may schools determine eligibility for women’s and girls’ sports based on biological sex? The answer is yes.”
Jackson concludes in the separate dissent, “Title IX makes room for individuals to live in the gender they choose; it cares not just about sex assigned at birth but also about individuals’ ability to match (or not) their gender presentation to their gender identity. Because West Virginia’s law forces B. P. J. to live—in this case, to play—as a boy though she is a girl, it might well run afoul of Title IX properly construed.”
Kavanaugh’s majority opinion continues, “The term “sex” in the 1972 Title IX statute, the 1974 Javits Amendment, and the 1975 Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex. The ordinary meaning of the term “sex” at the time of enactment in the early 1970s was biological sex and not gender identity, particularly in the sports context. See, e.g., Frontiero v. Richardson, 411 U. S. 677, 686 (1973) (plurality opinion) (“sex” is “an immutable characteristic”).
In addition, the Title IX regulations allowed separate sports teams precisely because of the biological differences between the sexes—namely, the inherent physical differences between biological women and biological men.
For example, the regulations authorized separate women’s and girls’ teams in sports when the teams are “based upon competitive skill or the activity involved is a contact sport.” §106.41(b). By referring to contact sports and competitive skill, the regulations plainly recognized the inherent physical differences between biological men and biological women—as well as the safety and competitive fairness concerns that would arise if males were allowed to compete in female sports.
As Justice (John Paul) Stevens explained a few years afterwards: Without a gender-based classification in competitive contact sports, there would be a substantial risk that boys would dominate the girls’ programs and deny them an equal opportunity to compete in interscholastic events.” O’Connor v. Board of Ed. of School Dist. 23, 449 U. S. 1301, 1307 (1980)”, citing that earlier court precedent.
Kavanaugh proceeds, “…the texts of Title IX, the Javits Amendment, and the Title IX regulations do not say (or even hint) that schools must allow certain biological males to participate in women’s and girls’ sports. Nor do the statute or regulations say that schools must make an exception for those biological males who identify as female and have taken puberty blockers or hormones. Put simply, the statute and regulations do not speak to that issue in a way that could properly be interpreted to require schools to allow biological males to participate in women’s and girls’ sports.
B. P. J. counters with an argument based on the 1974 Javits Amendment. B. P. J. zeroes in on the Javits Amendment’s directive that HEW (Dept. of Health, Education and Welfare, now known as Health and Human Services, HHS), in its regulations, adopt “reasonable provisions considering the nature of particular sports.” §844, 88 Stat. 612 (emphasis added). As B. P. J. sees things, if the regulations authorize a school to limit women’s and girls’ sports teams to biological females, then the regulations are not “reasonable” and therefore are unlawful.
We disagree. Separate sports teams for biological males and biological females are reasonable: 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. True, some might prefer a different rule allowing biological males who identify as female to participate on women’s and girls’ sports teams, at least in certain circumstances. But it was surely “reasonable” for HEW in 1975 to draw a biological line—a line where biological males play only on male sports teams and only biological females play on female sports teams. Even in recent years, 27 States, the NCAA, the USOPC, and the IOC have all drawn the same line.
Finally, the underlying medical and scientific premise of the plaintiffs’ entire equal protection argument is that at least some biological males who identify as female and take puberty blockers or hormones do not retain physical advantages over biological females.
Even if true, that empirical claim would not alter the equal protection conclusion set forth above. Under intermediate scrutiny, there still would be a sufficient relationship between the States’ classification based on biological sex and the States’ asserted interests in safety and competitive fairness.
In any event, the plaintiffs’ premise is the subject of ongoing medical and scientific debate and is not settled in their direction at this time. States and leading athletic organizations disagree with the plaintiffs and have concluded that biological males still retain a physical advantage after taking puberty blockers and hormones. To take one prominent example, the IOC found that “athletes retain Male performance advantage due in part to training effects and fixed traits.”
Kavanaugh, in response to the dissent by Justice Sotomayor, responds, “we do not accept the dissent’s assumed monopoly on understanding the effects on individuals involved in disputes over transgender athletes. We are acutely aware of the difficulties sometimes faced by boys who identify as girls (and by girls who identify as boys) in middle school, high school, and beyond. And we greatly admire the desire of all students, including transgender students such as B. P. J., who want to participate in sports. But in conducting the equal protection inquiry, we must also account for the effects on girls who are forced to compete against biological males in sports.”