By Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
The U.S. Supreme Court’s decision in the consolidated cases of West Virginia v. B.P.J. and Little v. Hecox on June 20, 2026, upheld laws passed by legislatures in the states of West Virginia and Idaho that restrict participation on girls’ and women’s athletic teams to those of “biological females” only. In doing so, the Court rejected the claims of two transgender female athletes who challenged these state laws under the Equal Protection Clause of the 14th Amendment and Title IX of the Education Amendments of 1972.[24]
The Court’s decision denotes a pivotal point in an ongoing, albeit politically motivated, debate over equality, civil rights, and their interplay with competitive sports. While supporters of the ruling contend that it provides both safety and fairness for cis-gender women competing in athletics, the decision raises worrisome questions about the Court’s use and interpretation, or lack thereof, of scientific evidence, the balancing of competitive rights, and, most importantly, the protections afforded marginalized communities.
Writing for the 6-3 majority, Justice Brett Kavanaugh concluded that state laws distinguishing between biological sex are permitted under the U.S. Constitution, holding that sex-separated sport teams as a reasonable and rational response to inherent physical differences between the sexes that reduce the chances of injury risk and protect competitive fairness.[25]
What is noticeable about Kavanaugh’s opinion is what it does not contain: any scientific findings to support the notion that transgender athletes possess athletic advantages over cis-gendered competitors. [26] As those familiar with the sport industry are fully aware, athletic performance is influenced by a plethora of interchangeable variables, including genetics (a one-on-one basketball game between this author and Shaq would be grossly unfair and uncompetitive – for Shaq that is . . .),[27] training and training methods, nutrition, socioeconomic opportunity, access to proper coaching and facilities, and an athlete’s individual physiology, to name a few.
In addition, the Court does not reference any of the numerous studies that have concluded that while testosterone influences muscle mass, lung capacity, and overall strength, the effects of gender-affirming hormone therapy have been found to substantially alter many physiological characteristics and advantages over time. And notably, numerous medical organizations, together with both the International Olympic Committee and the NCAA (as stated in their previous policies towards transgender participation), have acknowledged such and that the science surrounding athletic performance among transgender athletes is complex, while still continuing to evolve.
And this is precisely the concern that Justice Sotomayor (Go Bronx) wrote about in her dissenting opinion. Justice Sotomayor insightfully noted that Kavanagh’s opinion “inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions.”[28] Justice Sotomayor’s position being that the Court short-circuited a true legal discovery process and that the case should be sent back to the lower courts for further findings because the empirical questions of physiology, hormone suppression, and comparative performance are contested and individualized – not the kind of thing that should be resolved by judicial review and supposition.[29]
That being said, with Justice Kavanaugh failing to include any or all scientific information or data in writing the decision for the majority, we can only be left to call his opinion what it really is – a political conclusion dressed up as constitutional analysis with no connection to science, the history of transgender participation, or any of the numerous publications and scholarship concerning the issue. It treats “transgender athletes” as a single indistinguishable category, ignoring the medical consensus that gender-affirming hormone therapy, particularly when begun before puberty, substantially narrows or eliminates the athletic advantages the Court’s majority assumes to exist categorically.
The decision is just an easy out, a blanket exclusion of all transgender athletes that fails to account for individualized circumstances. A one-size-fits-all legal ruling, so to speak, that oversimplifies a remarkably complex and diverse athletic landscape. For those supporters of transgender rights, and for people who actually take the science of athletic performance seriously, this rational represents a triumph of ideology over evidence and a significant and unnerving departure from the Court’s prior equal protection jurisprudence.[30]
This is not to suggest that competitive equity involving cis-gender women is not an important issue that needs to be explored. Women’s sports deserve meaningful protection, especially after fighting for decades for funding, accessibility and recognition. But with Kavanaugh framing the opinion as defending fairness in women’s sports, he actuality cements an unfairness that conveniently overlooks the impact it will have on an already marginalized community. He purposefully singles out a relatively small group, i.e. transgender girls, who want to participate in high school athletics, this while knowing that transgender individuals presently face disproportionately high rates of discrimination, bullying, mental health challenges, and social exclusion. In addition, he forgoes any mentioning the fact that participation in school sports during teen years offers well-documented benefits, including improved physical health, stronger academic performance, leadership development, and social connection. Excluding transgender girls from athletic participation may deepen feelings of isolation while at the same time offering uncertain competitive benefits. With that, protecting women’s sports and respecting transgender rights should not be mutually exclusive.
In the end, Justice Kavanaugh’s decision provides an overly simplistic understanding of biology and fairness, while at the same time placing transgender athletes at the center of a made-up cultural conflict that they did not create – they just wanted to be included in sport. For those who believe fairness in sport should be judged by evidence rather than by categorical assumptions about who counts as a “real” girl or woman, this decision is a missed opportunity. The U.S. Supreme Court had a chance, a big chance, to require a science-based analysis of the issues that both due process and basic fairness demand, but it chose politics instead. Courts are most certainly entitled to interpret constitutional principles, but when judicial reasoning embraces politics and prejudices over science, confidence in the legal process suffers.
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West Virginia v. B.P.J., 602 U.S. ___ (2026). ↑
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Id. ↑
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West Virginia, supra, which held that discrimination against transgender employees is discrimination “because of sex” under federal civil rights law. ↑
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NOTE: Fairness in athletics has never meant absolute biological equality. Elite athletes routinely possess extraordinary natural advantages. For example, Michael Phelps has an unusual wingspan and lung capacity, most professional basketball players are taller than the average citizen, and genetic differences in endurance athletes have long been celebrated rather than regulated away. ↑
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West Virginia, supra. ↑
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West Virginia, supra. ↑
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See, Bostock v. Clayton County, 590 U.S. 644 (2020). ↑
