Kavanaugh’s argument stresses that everyone deserves to compete on a level playing field. People assigned male at birth have an inherent physical advantage, he writes; they are, on average, taller, bigger, faster and stronger than people assigned female at birth. Making members of these two groups compete with each other is unfair. Pepper-Jackson can join the boys’ team or not participate at all.
Sotomayor’s argument is also based on the idea that everyone deserves to compete on a level playing field. Pepper-Jackson began taking puberty blockers at age 10, the justice points out, ensuring that she never went through male puberty. At 12 she started hormone replacement therapy, which brought about a typical female puberty. Sotomayor’s colleagues, she said, had reached their decision without considering whether Pepper-Jackson actually had an athletic advantage over other girls.
Concern for the physical safety of women and girls is an important part of the court’s decision and a leitmotif in the ongoing attacks on trans rights. The opinion emphasizes that competing with or alongside people the conservative majority insists on calling “biological males,” especially in contact sports, poses a physical danger to girls. This seems like a reasonable concern, but the logic is convoluted. If males, by virtue of their weight and height and sheer physical strength, pose a risk to women in sports, then putting a trans girl like Pepper-Jackson in an all-male sports environment would — aside from all the social complications and locker room logistics — by definition put her in physical danger.
The question, then, is: Who warrants the court’s protections? The millions of cisgender girls who participate in school sports in this country? The handful of trans girls who wish to take part, too? (Pepper-Jackson is believed to be the only trans girl in her state seeking a spot on a girls’ team.) The answer would seem to be obvious: To the extent that it is possible, both groups should be protected from physical danger and unfair competition.
Before West Virginia banned transgender girls from girls’ sports, the state used to handle such matters on a case-by-case basis. If a team objected to the presence of a trans girl on a competitor’s roster, the team could register a complaint, and a board would review the case. Sotomayor, arguing in favor of that approach, reminds the court that it used to believe in viewing people as individuals rather than solely as representatives of a group or a class. She quotes from United States v. Virginia, a 1996 case that forced the Virginia Military Institute to open its admissions to women. In that decision, the court banned “state action that denies individuals ‘full citizenship stature,’ or ‘equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities,’ because of a class to which they happen to belong.”
