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The conservative majority on the Supreme Court seems likely to uphold state bans banning transgender girls and women from team sports at publicly funded schools. Twenty-seven states have those bans. NPR legal affairs correspondent Nina Totenberg reports on the court's arguments, which lasted over three hours.
NINA TOTENBERG, BYLINE: First, the facts. Two transgender girls, one who was then in fifth grade in West Virginia and one who was in college in Idaho, wanted to be part of their school track teams. But state law barred them from participating. So they went to court, contending that their respective state laws violate both the Constitution's guarantee to equal protection of the law and the federal law barring sex discrimination in sports.
At the Supreme Court on Tuesday, though, that was a tough sell. And while all the justices had lots of questions, the questioning was dominated by Justices Brett Kavanaugh and Neil Gorsuch, probably because of their personal connections to these issues. Gorsuch, after all, surprised many in 2020 when he authored the court's decision holding that gay and transgender individuals are protected under the federal law banning employment discrimination based on sex. As for Kavanaugh, he is a huge sports fan who has long coached his daughters' and other girls' basketball teams.
(SOUNDBITE OF ARCHIVED RECORDING)
BRETT KAVANAUGH: I mean, I hate that a kid who wants to play sports might not be able to play sports. Hate that. But we have - it's kind of a zero-sum game for a lot of teams.
TOTENBERG: But at the same time, he asked repeatedly whether individual states should make the decision on who gets to play. Justice Gorsuch, for his part, posed many difficult hypotheticals. Here's one about academic performance.
(SOUNDBITE OF ARCHIVED RECORDING)
NEIL GORSUCH: When it comes to high school performance, girls are sure a lot better than boys. And so we're only going to have remedial classes for boys, and girls aren't free to attend.
TOTENBERG: Justice Amy Coney Barrett had a tougher question.
(SOUNDBITE OF ARCHIVED RECORDING)
AMY CONEY BARRETT: So how would your theory play out if we're talking about 6-year-olds, where there's no difference between boys and girls in terms of athletic ability, testosterone levels, etc?
TOTENBERG: At the end of the day, it was unclear whether the court would write a narrow or broad opinion, the latter likely incentivizing a lot more restraints on transgender individuals.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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