Why Roberts and Gorsuch may decide the Supreme Court's blockbuster transgender sports case

CNN

4 hours ago

The Supreme Court's decision Thursday to weigh in on transgender sports bans will put two conservative justices in the spotlight in coming months, both because of what they have said in past cases involving LGBTQ rights – and what they haven't.
Only two justices have written majority opinions involving transgender Americans – Chief Justice John Roberts and Justice Neil Gorsuch – and both avoided revealing their thoughts about the sports cases last month when, in a blockbuster ruling, the Supreme Court upheld Tennessee's ban on puberty blockers and hormone therapy for trans youth.
For the second time in as many years the high court will wrestle with a heated legal dispute involving young transgender Americans at a time when they are facing severe political backlash driven in part by President Donald Trump and conservative states. The court agreed to hear appeals in two related cases challenging laws in West Virginia and Idaho that ban transgender girls and women from competing on women's sports teams – including one that was filed by a middle school student at the time.
While the court swerved around fundamental questions about trans rights in last month's decision in US v. Skrmetti, it will be far harder to do so in the sports cases.
And that could put enormous focus on Roberts and Gorsuch.
'Even though the court ruled against the transgender plaintiffs in Skrmetti, it did not decide the larger and more important question of whether discrimination based on transgender status triggers more searching judicial review,' said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.
'Everything,' Vladeck predicted, 'is going to come down to where Roberts and Gorsuch are.'
In some ways, the Supreme Court's 6-3 decision on June 18 upholding Tennessee's ban on certain transgender care was limited. That opinion, written by Roberts, explicitly declined to decide if the law discriminated against transgender youth. Tennessee's policy, Roberts reasoned, instead drew boundaries based on age and medical procedures that were well within a state's power to regulate.
That logic avoided thorny questions about whether the law violated the 14th Amendment's equal protection clause if it specifically targeted transgender minors for different treatment.
Tennessee's law, Roberts wrote, 'classifies on the basis of age' and 'classifies on the basis of medical use.'
But it will be more difficult for the court to duck those broader questions in the sports cases, several experts said.
'It is notable that the court seemed to go out of its way to avoid endorsing the idea that the law discriminated against transgender people and instead found that the Tennessee law had drawn lines based on age and medical diagnoses,' said Suzanne Goldberg, a Columbia Law School professor and an expert on gender and sexuality law.
'The new cases squarely present the discrimination questions in ways that will be hard to avoid,' she said.
'It's important,' she said, 'not to lose sight of the fact that these cases involve kids trying to make their way through school and life like every other kid.'
Gorsuch, who was Trump's first nominee to the Supreme Court, joined the majority opinion in the Tennessee case but did not write separately to explain his position.
His silence was significant given that one of the key arguments at stake was how – or whether – to apply the landmark 2020 decision in Bostock v. Clayton County that he authored. In that decision, the court ruled that transgender workers are covered by federal protections against discrimination based on sex because discrimination against a transgender person is, by extension, necessarily also discrimination based on sex.
The Biden administration and transgender teenagers fighting Tennessee's law asserted that the same logic should apply when it comes to gender identity care bans. But the court has never extended its reasoning in Bostock beyond the workplace, and the decision drew immediate and sharp criticism from the right at the time.
John Bursch, a veteran Supreme Court litigator and senior counsel at the conservative Alliance Defending Freedom, predicted that both Roberts and Gorsuch will ultimately back the state bans on transgender people participating in sports that align with their gender identity given their votes in the Tennessee dispute.
'If they were in agreement that Tennessee's law did not discriminate based on gender identity, I would assume that both of them would come to the same conclusion here when it comes to sports,' Bursch said. 'But you never know for sure, and anytime that we go to the court, we assume that all nine justices are in play.'
Alliance Defending Freedom is a co-counsel in both sports cases the Supreme Court agreed to hear.
'Our hope is that we would get a unanimous ruling to protect women's sports in favor of both West Virginia and Idaho in their laws,' Bursch added.
Other members of the court's six-justice conservative wing – including two who are often decisive votes – have more clearly signaled their thoughts on anti-trans laws.
In the Tennessee case, Justice Amy Coney Barrett penned a concurring opinion making clear that she opposed granting transgender status the same anti-discrimination protections that race and sex have under the 14th Amendment. She also was the only member of the court's majority that day to raise sports in an opinion.
'Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy – ranging from access to restrooms to eligibility for boys' and girls' sports teams,' Barrett wrote in an opinion joined by Justice Clarence Thomas. 'If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of 'closely scrutiniz(ing) legislative choices' in all these domains.'
Justice Samuel Alito wrote a concurrence arguing against extending Bostock's reasoning to constitutional cases.
During oral arguments over Tennessee's law in December, Justice Brett Kavanaugh – another justice who is sometimes seen as a swing vote – mentioned sports as he peppered the lawyer for the Biden administration with skeptical questions about her position.
'If you prevail here,' asked Kavanaugh, who has frequently noted that he coached his daughters' basketball teams, 'what would that mean for women's and girls' sports in particular?'
'Would transgender athletes have a constitutional right, as you see it, to play in women's and girls' sports, basketball, swimming, volleyball, track, et cetera, notwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes?' Kavanaugh pressed.
In response, then-Solicitor General Elizabeth Prelogar attempted to distinguish the sports cases from Tennessee's law. She noted that some lower courts had already held that the sports bans triggered a higher level of judicial scrutiny.
Kavanaugh also dissented from Gorsuch's decision in Bostock.
The court's three liberals dissented in the Tennessee case, with Justice Sonia Sotomayor writing that the majority had pulled back from 'meaningful judicial review exactly where it matters most' and instead 'abandons transgender children and their families to political whims.'
In the West Virginia case, then Gov. Jim Justice, a Republican, signed the 'Save Women's Sports Act' in 2021, banning transgender women and girls from participating on public school sports teams consistent with their gender identity. Becky Pepper-Jackson, a rising sixth grader at the time, who was 'looking forward to trying out for the girls' cross-country team,' filed a lawsuit alleging that the ban violated federal law and the Constitution.
The Richmond-based 4th US Circuit Court of Appeals ruled last year that West Virginia's ban violated Pepper-Jackson's rights under Title IX, a federal law that prohibits discrimination on the basis of sex at schools that receive federal aid. The court also revived her constitutional challenge of the law.
Two years ago, the Supreme Court denied West Virginia's emergency docket request to let it fully enforce its ban. Alito and Thomas dissented from that decision, though the focus of their objection was that neither the Supreme Court nor the 4th Circuit had offered an explanation for their decisions.
In Idaho, Republican Gov. Brad Little signed the state's sports ban in 2020. Lindsay Hecox, then a freshman at Boise State University, sued days later, saying that she intended to try out for the women's track and cross-country teams and alleging the law violated the 14th Amendment's equal protection clause.
A federal district court blocked the law's enforcement against Hecox months later and the San Francisco-based 9th US Circuit Court of Appeals affirmed that decision last year. Idaho appealed to the Supreme Court in July.
State officials in West Virginia and Idaho praised the court's decision to take up the cases.
'Idaho was the first state to step out and ban boys and men from competing with girls and women in organized athletics,' Little said on Thursday, describing the law as a 'common sense' policy intended to 'protect the American way of life.'
Lawyers for the transgender athletes described the laws as discriminatory and harmful.
The Supreme Court will likely hear arguments in the cases later this year or in early 2026 and is expected to hand down a decision by the end of June.