People think they know that men are stronger than women. But what is strength? Some of us may think that our mother is the strongest person we know, because strength is not only measured in muscles and arm length. It may be an indomitable spirit. The entire premise of gender differences is based on fundamental differences between male and female participants. This is an assumption that can be broken by closer analysis. In sports, the average man and woman do not compete. Individuals do, unless of course they are transgender.
Sports are basically about winning and losing. No one likes to lose, but there are some good losses where participants can learn how to improve. But there are also terrible losses that can demoralize and break people, leaving them without a path forward.
On Tuesday, the U.S. Supreme Court dealt a terrible disservice to the transgender community. The court upheld a state law banning transgender people from playing sports consistent with their gender identity, but the ruling went far beyond that. Although the news media has largely ignored this fact, this terrible loss should not be ignored.
The way courts have rejected equal protection claims for the transgender community and blocked many status challenges to specific applications of the law will have a devastating impact on the lives of transgender individuals. Functionally, courts have rubber-stamped state policies aimed at erasing transgender people when states can justify their policies as gender-based classifications. As Justice Sonia Sotomayor warned in her dissenting opinion, almost any policy involving a mostly defensible gender classification could require transgender people to live according to the gender assigned to them at birth.
related: U.S. Supreme Court says states can ban transgender women and girls from sports
In effect, the court opens the door for states to issue “trans bans” wherever gender-based classifications exist. Justice Neil Gorsuch said in a concurrence that gender-based dress codes are outside the scope of legal logic. bostocknarrows it down while maintaining that precedent. Based on that theory, transgender men Bostock’s Protection against discrimination. Similarly, medically transitioned transgender women may still be forced into men’s prisons due to state policies based on their birth sex.
combine with scumettithis decision would effectively allow states, and perhaps the federal government, to regulate transgender medical care for adults. The government could simply say it regulates procedures differently for men and women, and that policy could survive constitutional scrutiny. Even transgender people who have already received gender reassignment medical care may be unable to receive further treatment.
The ruling also prohibits challenges to gender-based classifications, even if individuals can demonstrate that the state’s justifications do not apply in their particular circumstances. In West Virginia’s portion of the decision, transgender students who have never experienced male puberty due to puberty blockers were still barred from girls’ sports. Intersex people similarly face reduced ability to oppose policies that erase their existence.
related: Supreme Court did not rule on trans sports case
Before this decision was made, and in much of the media coverage since, the public conversation centered on fairness in women’s sports. As Justice Brett Kavanaugh has written, these cases are often considered “zero-sum.” In other words, if someone wins, someone loses. fair enough. But this ruling goes far beyond athletics.
Justice Clarence Thomas went further, arguing that transgender does not exist as a constitutional category, but simply as a man or woman with gender dysphoria. He characterized gender identity as a “changeable mental condition subject to psychiatric treatment” and suggested that it would be dishonest for transgender people to live according to their gender identity.
This decision is devastating not only to transgender people, but also to the broader LGBTQ+ community, as sex, gender, gender identity, and sexual orientation are deeply interconnected. This is not the first time LGBTQ+ people have suffered a major defeat at the Supreme Court.
What to do after a bad loss? we get angry we will recover. We learn from experience.
The ACT UP movement was born, in part, after the Supreme Court’s 1986 decision. Bowers vs. Hardwicksupported legislation that criminalized same-sex intimacy. Over time, the public attitudes of advocacy groups and the general public changed. Our own research on transgender public opinion shows that the work must continue today.
Public attitudes towards transgender people remain alarming. They are often closer to the views of Clarence Thomas than the wishes of LGBTQ+ supporters. The transgender community and its allies must continue to reach out beyond the courtroom and into the hearts and minds of the public.
Too many Americans still lack a basic understanding of the lives of transgender people. That makes it easy to treat transgender people as political footballs. It blinds people from injustice.
Don’t get me wrong. This decision is unjust.
Today’s courts lack even the understanding shown in court. bowers. Only through greater public understanding can we demonstrate to both the courts and the American public how deeply misguided this decision is. The impact goes far beyond sports and extends to nearly every aspect of transgender people’s lives.
Underlying the anti-transgender focus of this ruling is sexism, and this force is often intertwined with racism. These are also issues on which the Court has suffered significant setbacks in recent years.
Winning and losing are part of sports. But in law, loss can shape a generation. This decision has implications far beyond athletics, and will become increasingly clear as transgender lives are disrupted.
Andrew R. Flores and Jami K. Taylor wrote this entry without any institutional affiliation.
Dr. Andrew R. Flores and Dr. Jamie K. Taylor are political scientists. The views and opinions expressed in this article are those of the author in his personal capacity as a civilian; these opinions do not reflect the official policy or position of his employer. Doctors. Flores and Taylor have published peer-reviewed research in leading political science and public policy journals.
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