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Brett Kavanaugh’s Anti-Trans Ruling Takes a New and Disturbing Turn [slate.com]:

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As Pride Month celebrations drew to a close on the last day of June, the Supreme Court delivered another blow to the LGBTQ+ movement. Earlier in its term, the court had backed anti-gay conversion therapy [slate.com], undermined protections [slate.com]for transgender children in schools, and sided with the Trump administration’s refusal to let trans people use the appropriate gender markers [slate.com]on passports. In its most recent decision, the court denied a trial that would show whether transgender girls had an advantage over cisgender girls in sports.

Whatever one thinks of its merits—I happen to believe that the court got it wrong [bloomberglaw.com]—the case represents a fundamental shift in the court’s treatment of trans people. For the first time, the court repeatedly referred to the plaintiffs as “biological males who identify as female.” Never before has it so entirely ignored, even rejected, a plaintiff’s characterization of the sex with which they identify.

B.P.J. v. West Virginia [supremecourt.gov], in which SCOTUS decisively sided with state bans on transgender girls’ inclusion on girls’ sports teams, was not the first time the court had encountered questions of transgender inclusion. Indeed, the first case to raise these questions resulted in a win for the transgender plaintiffs. In 2020’s Bostock v. Clayton County [supremecourt.gov], the court held that federal law’s prohibition on sex discrimination in employment also prohibited anti-transgender discrimination. Last year, trans minors fared less well when the court upheld state bans [supremecourt.gov]preventing them from getting gender-affirming care.

Yet, in both cases, the court mostly took care [californialawreview.org]to acknowledge the lived sex of transgender plaintiffs. In discussing Aimee Stephens, the transgender plaintiff in the employment case, the Bostock court used the correct pronouns and form of address: “When she got the job, Ms. Stephens presented as a male” but then, “in her sixth year with the company, … wrote a letter to her employer explaining” her transition. Justice Neil Gorsuch (who notably sided with the court’s archconservatives in the recent birthright citizenship case) penned the opinion.

Similarly, in the healthcare ban case last year, while siding against the trans plaintiffs, the court (here, with Chief Justice John Roberts as the author) was careful to align the opinion’s language with the gender identity of the hypothetical plaintiff, noting that “if a transgender boy seeks testosterone to treat his gender dysphoria,” the challenged law “prevents a healthcare provider from administering it to him.” Even when ruling against trans minors, Roberts made a point of using the correct pronouns.

In B.P.J. , all this changed. Justice Brett Kavanaugh, the author of the majority opinion, never used the term transgender girls . Rather, he preferred calling them “biological males who identify as female.” In his concurrence, Justice Clarence Thomas went even further, claiming that a “man does not have a legal right to compete against women just because he believes that he is a woman.” To claim that a trans girl is a girl, he declared, is a “lie to the public” that “obscure[s] reality.”

Quite apart from the actual outcome of the case, the court’s language is deeply disrespectful of transgender plaintiffs. It ignores the anguish that many trans people feel at being shoehorned back into their sex assigned at birth. But more than that, it obscures the reality and erases the history of transgender lives by diminishing the significant time, money, and effort many transgender people spend to align their body with their sex. The court’s language frames the issue as biology vs. identity, objectivity vs. subjectivity, reality vs. fiction.

The majority’s use of such language is a deliberate choice rather than a scientific inevitability. Many characteristics go into determining someone’s sex: chromosomes, reproductive organs, hormonal balances, secondary sex characteristics like breast tissue and body-hair distribution. For some individuals, these characteristics do not align; some women have male-associated (XY) chromosomes but uteruses, while some men with male chromosomes and testes still grow breasts. Most importantly, the plaintiffs in these cases never went through male puberty, though they did grow breast tissue and lack testosterone levels typical of men. Are they, in fact, “biological males,” as Kavanaugh insisted? And are the justices—none of whom has an advanced degree in any biological science—qualified to make that determination?

The court’s disregard for trans people also helps explain its reasoning. As Justice Sonia Sotomayor pointed out in her partial dissent, the majority did not use the test that usually applies to sex discrimination—which the plaintiffs alleged had occurred, and which would likely have required a trial to assess their claims. Instead, the majority, without explanation, chose a more relaxed test that denied her that right.

The majority’s language could also signal how it will rule on future trans rights issues. If transgender girls are actually biological males, they may be forbidden to use locker rooms and restrooms in accordance with their sex. They will not be entitled to pronouns and passports that align with their gender identity—only their putative “biological” sex, as determined by the state. And although the court explicitly reserved the question, it may mean that states that allow trans girls to participate on girls’ teams will be forbidden from doing so [theguardian.com].

Calling transgender girls “biological males” ultimately erases transgender identity. It is no surprise, then, that a court willing to do that would also erase their rights.

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