Supreme Court Justice Ketanji Brown Jackson’s Dissent on Transgender Athletes
Justice Ketanji Brown Jackson, alongside Justices Elena Kagan and Sonia Sotomayor, expressed strong dissent in response to the Supreme Court’s ruling which permits states to restrict transgender athletes from participating in women’s sports. They argue that Title IX “cannot plausibly imply” that “sex” strictly refers to a person’s biological sex at birth.
Jackson, visibly upset with the majority opinion, maintained that Title IX clearly accommodates individuals in living as their chosen gender. She discussed the troubling reality that transgender athletes face discrimination based on their gender identity, which she described as “offensive.”
According to Jackson, the discrimination against transgender athletes, regardless of societal perceptions about them, contradicts Title IX’s provisions against discrimination.
She stated, “Transgender women who are punished for being deemed offensive also experience the same ‘gender-based’ discrimination as cisgender women, no matter if a transgender woman’s behavior aligns with the societal expectations for her gender at birth. The institution imposes gender-based expectations on her, and this may violate Title IX,” she elaborated.
During her 2022 confirmation hearing, Jackson had notoriously remarked that she found it challenging to define what it means to be a woman.
The court’s 6-3 decision is viewed as a significant setback for the belief that boys can transition to girls and should not be perceived as having any physical advantage in sports compared to those assigned female at birth. This ruling allows states to prohibit male students identifying as girls from participating in girls’ sports, suggesting that transgender athletes might indeed possess physical advantages over women.
Justice Brett Kavanaugh, in the majority opinion, emphasized that it is unrealistic to expect sports officials to evaluate the physical advantages of transgender girls compared to biological males on an individual basis.
“Determining the impacts of puberty blockers and hormones taken by transgender athletes, especially in sports, and comparing performances with both biological males and females would be an exceptionally challenging task for a judge to accomplish impartially,” Kavanaugh noted.
He further argued that Title IX permits schools to create sex-segregated sports teams based on “biological sex,” stating that states can apply these regulations under the Constitution. “Schools may set eligibility criteria for women’s and girls’ sports based on biological sex,” Kavanaugh added.
Joining Kavanaugh in the majority were Chief Justice John Roberts, Justices Clarence Thomas, Neil Gorsuch, Samuel Alito, and Amy Coney Barrett.
In her dissent, Justice Sotomayor criticized the majority’s assertion that courts cannot make individualized medical assessments, deeming the decision “unfettered by fact or law.” She expressed her concerns about prematurely terminating cases like that of transgender athlete Becky Pepper Jackson, which are still underway in lower courts.
Sotomayor cautioned that this ruling allows states like West Virginia to disregard the experiences of transgender individuals based solely on preconceived notions about their athleticism, stating, “Today’s court decision permits authorities to invalidate the experiences of BPJ and others just because they assume those athletes are inherently athletic, even when facts may suggest otherwise.” She concluded, “While sports are often a zero-sum game, the law doesn’t have to be, nor should it be.”
