A possible approach is to allow each state to adopt its own rule based on its own legislative judgment, which would give states the ability to permit transgender girls to participate in girls' sports rather than using federal law to prohibit it.
From the oral argument on Tuesday, it seems clear that the Supreme Court will likely uphold state laws that prohibit transgender girls from participating in girls' sports, even if the transgender girls have taken puberty blockers that reduce their testosterone levels to the point where they would not have a physiological advantage.
The arguments in the two cases from Idaho and West Virginia -- Little v. Hecox and West Virginia v. B.P.J. -- were exceedingly technical, even by Supreme Court standards. But beneath the arcane legal jargon, it was possible to see the justices grappling with a fundamental question: Given that we separate sports by sex to ensure that girls can compete and win, should transgender girls be permitted to participate in girls' sports?
There are, broadly speaking, four principal answers to this question.
The first, which prevails in some 23 states, is that transgender girls (and women) may participate in conformity with their gender identity. Those policies were not directly before the court in the current cases, but they did get some discussion. The reason is that, in separate litigation, the Department of Justice is challenging the legality of letting any transgender girls play girls' sports. The various lawyers, including the representative of the solicitor general's office, urged the justices to avoid that issue for the time being.
The appeal of this approach is that it respects the dignity of transgender girls by assigning them to the gender category with which they identify. The downside is that if transgender girls do have biological advantages in strength, size or speed, this approach could undermine the reason we have exclusively girls' sports in the first place, namely, to ensure that girls have athletic opportunities equal to those of boys.
The second approach, followed in 27 states -- including Idaho and West Virginia -- effectively bars all transgender girls from girls' sports. The laws implementing this approach require all children to play on sports teams that match their biological sex at birth. The lawyers defending these laws argued that this approach was consistent with the way Title IX of the Civil Rights Act guarantees equal opportunity based on sex. In practice, this entails a loss to the dignity of transgender girls.
The third approach is the one urged by the lawyers for the transgender girls in the cases before the court: a case-by-case system tailored to individual transgender athletes. Rather than arguing that the state laws in Idaho and West Virginia are unlawful or unconstitutional across the board, the lawyers took the moderate tack of asserting that transgender girls who have undergone gender-affirming treatment sufficient to eliminate any physiological advantage must be allowed to participate in girls' sports.
This middle-ground position would ensure that cisgender girls, as a group, were not disadvantaged by the inclusion of transgender girls in sports.
The legal difficulty that this centrist position faces is that the idea of girls' sports embedded in Title IX itself works on the basis of a highly generalized, non-specific distinction between girls and boys. Some boys are worse at some sports than most girls; but those boys aren't allowed to compete in girls' sports. As a result, the argument for case-by-case eligibility rules for transgender girls ultimately rests on their dignitary interest in having their gender affirmed — an interest that isn't clearly established in federal statutory or constitutional law.
The fourth and final position was espoused by Justice Brett Kavanaugh at oral argument: that the Supreme Court should allow each state to adopt its own rule based on its own legislative judgment. Technically, this approach seeks to resolve the question by not answering it. Such judicial restraint has a basis in constitutional law principles because it suggests that when it comes to a contested political or moral issue, the people should decide, not the courts. Kavanaugh made a similar argument in Dobbs v. Jackson Women's Health, the decision that overturned Roe v. Wade.
Who's right? What can be said, I think, is that a society seeking to be morally decent should make a serious effort to recognize the dignity of all its people, especially when doing so doesn't disadvantage anyone else. Setting aside concerns about legal consistency and practical administrability, it seems wrong to deny athletic opportunities to transgender girls in situations where they do not possess any physiological advantage over cisgender girls. As a matter of policy, states ought to adopt the approach sought by the transgender girls' lawyers in this case.
The conservative majority of the justices, however, clearly wasn't convinced that federal law or the Constitution requires this approach -- a different matter from its moral attractiveness. Given that reality, it would be better for the court to adopt Kavanaugh's approach, thereby ensuring that states have the ability to permit transgender girls to participate in girls' sports rather than using federal law to prohibit that possibility altogether. Judicial restraint is only meaningful if it's applied across the board, not trotted out selectively to prefer policy outcomes the justices favor.