SCOTUS: We’ll Settle the Transgender Athlete Controversy Next

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Gee, I wonder what the Supreme Court has in mind with its latest grant of certiorari? Based on some news reports, it might sound as though the top court got pushed into this fight:

The Supreme Court announced on Thursday that it would hear two cases testing the constitutionality of state laws that bar transgender athletes from girls’ and women’s sports teams.

The justices’ decision to hear the disputes signals that the court is willing to delve back into the fraught battle over transgender rights. In June, the court, split along ideological lines, upheld a Tennessee law that banned some medical treatments for transgender youth.

The cases accepted on Thursday stem from legal challenges to state laws limiting transgender athlete participation in Idaho and West Virginia.

Did the court get pushed into settling this controversy, though? The Supreme Court generally takes up controversial policy issues such as these either because two appellate circuits have issued contradictory rulings, or the court really desires to correct a ruling made by lower courts. 

And as ABC News points out, there’s no circuit split on this issue. Two different courts have instead struck down state laws that limit the definition of “sex” for Title IX enforcement to biological sex:

The cases from West Virginia and Idaho — which will be scheduled for argument during the court’s next term — will decide whether the Constitution and Civil Rights Act prohibit the bans based on an athlete’s sex assigned at birth.

Lower courts in each of the cases sided with the student athletes in finding the state laws violated either the 14th Amendment’s equal protection clause or Title IX of the Civil Rights Act.

If the court wanted to let those determinations stand, they wouldn’t have accepted the appeal from Idaho and West Virginia. Even assuming a wildly speculative theory that the three liberal justices wanted to take up the case to give that outcome a Supreme Court imprimatur, there aren’t enough of them to grant cert. It takes four justices to agree to hear a case at the Supreme Court, which means that there’s almost a majority already that appears to see problems with the identical rulings in two different appellate circuits. 

West Virginia’s AG certainly seems pretty happy with the decision to accept the case, which should tell people something about the development:

“It’s a great day, as female athletes in West Virginia will have their voices heard. The people of West Virginia know that it’s unfair to let male athletes compete against women; that’s why we passed this common sense law preserving women’s sports for women,” McCuskey said.

Here’s another point worth considering. In the ruling opinion from Skrmetti, Chief Justice John Roberts ruled that state laws based on access to hormone treatments only required a rational-basis review, not strict scrutiny as usually applied to constitutional issues. The Tennessee law barred the use of hormone therapies for minors as a treatment for gender dysphoria with the purpose of transitioning genders, but allowed such therapies for other recognized and uncontroversial diagnoses. Roberts wrote that muh feelz did not override the rational basis Tennessee had for imposing these restrictions. From the summary:

(b) SB1 satisfies rational basis review. Under that standard, the Court will uphold a statutory classification so long as there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U. S. 307, 313. SB1 clearly meets that standard of review. Tennessee determined that administering puberty blockers or hormones to minors to treat gender dysphoria, gender identity disorder, or gender incongruence carries risks, including irreversible sterility, increased risk of disease and illness, and adverse psychological consequences. The legislature found that minors lack the maturity to fully understand these consequences, that many individuals have expressed regret for undergoing such treatments as minors, and that the full effects of such treatments may not yet be known. At the same time, the State noted evidence that discordance between sex and gender can be resolved through less invasive approaches. SB1’s age- and diagnosis-based classifications are rationally related to these findings and the State’s objective of protecting minors’ health and welfare.

The Court also declines the plaintiffs’ invitation to second-guess the lines that SB1 draws. States have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Gonzales v. Carhart, 550 U. S. 124, 163. Recent developments demonstrate the open questions that exist regarding basic factual issues before medical authorities and regulatory bodies in this area, underscoring the need for legislative flexibility.

Emphasis mine. Now let’s apply that to the clear issues regarding the potential dangers of allowing males to compete against females in many competitions, and add in the violations of Title IX balancing that occurs when women get marginalized in competitive spaces. That alone would apply fully to these cases, and not just on a rational-basis level. Skrrmetti also dispensed with the 14th Amendment argument in a way that strongly suggests that its use in transgender cases generally will not get much sympathy from the Skrmetti majority. 

McCuskey has good reason to celebrate, in other words. We’ll see what happens when the court hears these arguments, but they seem intent on correcting the record in some fashion.