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Barely more than 24 hours after the U.S. Supreme Court upheld two states’ transgender athlete bans, Seattle University School of Law convened its Fourth Annual Rapid Response Webinar to dissect the decision.
The U.S. Supreme Court ruled 6-3 along ideological lines in West Virigina v. B.P.J. and Little v. Hecox that states can ban transgender athletes from playing on the team with which they identify. The two cases involved transgender girls and women in West Virginia and Idaho, respectively, who wished to compete in cross-country and track.
The panel of experts convened by Seattle U Law Professor Andrew Siegel, faculty director of the Supreme Court Initiative, included nationally recognized legal scholars, practitioners, and advocates who explained the Supreme Court’s reasoning and theorized about the impact that this decision is likely to have on transgender athletes, cisgender female athletes, and on future litigation related to equal protection.
More than 300 people livestreamed the webinar, making it the second-largest attendance of a Supreme Court Rapid Response Webinar to date.
The first panel, moderated by Seattle U Law’s Kelli Rodriguez, assistant dean for Academic Affairs and director of the Sports Law Program, analyzed the decision itself. Speakers included: Michael Dorf, the Robert S. Stevens Professor of Law at Cornell Law School; Ohio State University Professor Christopher Green; Seattle U Law Professor Nazune Menka, faculty director of the Northwest Center for Indigenous Law; nationally recognized civil rights attorney Brian Sutherland, a partner at Beal Sutherland Berlin and Brown PLLC; and Sarah Warbelow, senior vice president for Law, Policy, and Research at Out & Equal.
The second panel, moderated by Siegel, looked ahead to the possible future effects of the court’s ruling. This panel was composed of: Noa Ben-Asher, professor and assistant dean for Faculty Scholarship at St. John’s University School of Law; Jessica Clarke, the Robert C. and Nanette T. Packard Professor of Law at the University of Southern California Gould School of Law; Shannon Minter, vice president of Legal at The National Center for LGBTQ Rights; Cornell Law School Visiting Assistant Professor Chan Tov McNamarah; and Evan Wolfson, founder of Freedom to Marry.
“The court, through varied reasonings, decided 9-0 that [state policies preventing trans athletes from participating on women’s sports teams] were not a violation of Title IX, but they split very strongly and very contentiously on the equal protection issue,” said Siegel in his introduction. “The majority of the court, in the opinion by Justice [Brett] Kavanaugh with several concurrences, said that there was not an Equal Protection [Clause] problem with these policies. Justice [Sonia] Sotomayor dissented, for herself and her two traditionally liberal colleagues, arguing that indeed there was a problem, that the young women were entitled to a lot more process, were entitled to a trial or hearing on the facts, that the state had much more of a burden.”
Menka said during the first panel that at their core, the cases are about belonging.
“It requires us to think through what type of democracy we are and what kind of democracy we want to be,” she said.
Sutherland said that the majority opinion did not spend enough time talking about the harm done to the students who were not allowed to play.
“I was surprised to see such a full-throated defense of women’s rights in this opinion in ways that seem so focused on that so as to exclude the experience of other people, the plaintiffs in this case,” he said. “I was disappointed by that. I feel that the discussion of injury was lacking, and there were blinders on to that.”
On that same note, Warbelow pointed out the many harms that have already been done across the country, not only to transgender girls and women, but also cisgender girls and women.
“There were investigations into whether or not non-transgender girls were lying about who they were, they were pulled off of teams, prohibited from playing in athletic competitions,” Warbelow said. “And so, we really can anticipate that these negative outcomes will continue, and that more and more young people will continue to be subject to these types of investigations and claims, particularly in states that have statutes that effectively allow any individual at any point to challenge whether an individual girl is entitled to be a member of the team.”
On a positive note, she clarified that while this decision upholds transgender bans, it does not require states and school districts to discriminate against transgender students. States and schools are still free to “adopt policies that support transgender young people in athletics.”
In the second panel, McNamarah agreed with Warbelow about the harm that had been done across the board.
“Just last year in Utah, we’ve seen politicians attack and vilify, on social media, actual cisgender high school students for seemingly looking too masculine, with people assuming that they’re trans when they’re actually not,” they said. “You know what would solve that? Trans inclusion.”
Minter brought up the many misconceptions related to the trans athletes, calling this “the single most toxic, polarizing issue related to transgender people in the country today.”
“I think people wrongly have the view that this is an all-or-nothing proposition - either we’re saying that everyone has to play based on whatever you say your gender identity is, or nobody can play, a complete exclusion of transgender people,” Minter said. “And that’s not how this is rolled out … When you get to elite competitions like the NCAA, of course you need some kind of reasonable medical requirement to ensure some degree of fairness - probably the NCAA rule needed to be tightened up more.”
Wolfson seconded Minter’s words about the work that needs to be done to educate the public on the transgender community.
“We have to be telling our stories, helping people understand who trans people are – not in giant, rhetorical poses and postures, not in alienating language, not in grand, sweeping, all-or-nothing performative politics … to change people’s understanding and reinforce their better impulses,” he said.
He took a look at the nation’s history in the week of its 250th anniversary to provide hope going forward.
“We have a captured court, we have corrupted politics, and trans people have been a primary target, but by no means the only target,” Wolfson said. “Yet, even in such a dark moment, our own history tells us, and our own lived experience and the lives of at least some of us, even on this panel, show that we can change things, that we have power. The Supreme Court has an important word, but they don’t have the last word.”
At the close of the discussion, Siegel thanked all of the panelists for giving their time and expertise.
“It was a wonderful cross-section of participants, fascinating arguments, I learned a lot,” he said.
Seattle U Law has posted a full recording of the webinar on its YouTube channel.