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THE TRANSGENDER SPORTS DECISION WAS ABOUT SOMETHING DEEPER THAN LAW
 
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M. Gessen
July 2, 2026
The New York Times
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_ In the hands of this court, the principles and practices that were
once intended to enfranchise more people often become, instead, tools
of exclusion. _

Becky Pepper-Jackson outside the Supreme Court on Sunday, Jose Luis
Magana / AP

 

Read the Supreme Court’s recent ruling on transgender athletes —
the majority’s decision, written by Justice Brett Kavanaugh, and the
dissent, written by Justice Sonia Sotomayor — and you will see the
members of the court arguing about something more fundamental than the
law. They are arguing about who should be seen, whose story ought to
be heard and who deserves to be protected.

Kavanaugh’s opinion contains a long lyrical tribute to female
athletes. “They spend extraordinary time and effort to train in the
heat and in the cold, to work out early in the morning and late at
night, to get a little faster, to become a little stronger, to jump a
little higher, to shoot a little better, to watch a little more video,
to make the lonely journey back from an A.C.L. tear, to scrap for
playing time, to start, to win the game, to win a championship, to
hang a banner, to bring home a medal, to be all-tournament,
all-County, all-State or all-American,” he writes, adding,
“Whether the star of the team or the last player on the bench, they
form lifelong friendships and lifetime memories.”

Sotomayor’s dissent, too, includes a description of a young person
in love with her sport. Referring to a plaintiff by her initials,
Sotomayor writes, “B.P.J.’s mother reports that B.P.J. ‘has had
the time of her life participating on these teams.’ She has watched
B.P.J. make close friends and gain a sense of belonging. Her mother
recalls taking B.P.J. to practice after hours and on weekends, and
often witnessing B.P.J. practicing her form in the backyard ‘by
herself, for hours.’ Above all, her mother explains that B.P.J.
‘is the happiest I have ever seen her when she is accepted for who
she is and able to participate in school sports.’”

Kavanaugh and Sotomayor are looking at different athletes: He is
describing cisgender girls, and Sotomayor is focusing on one of the
plaintiffs in the case, a West Virginia high school student named
Becky Pepper-Jackson
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who was excluded from middle school sports after her state enacted
legislation banning the inclusion of trans girls in girls’ sports.
(When a district court found West Virginia’s law likely to be
unconstitutional, Pepper-Jackson joined her school’s track and
cross-country teams.)

Read the Supreme Court’s recent ruling on transgender athletes —
the majority’s decision, written by Justice Brett Kavanaugh, and the
dissent, written by Justice Sonia Sotomayor — and you will see the
members of the court arguing about something more fundamental than the
law. They are arguing about who should be seen, whose story ought to
be heard and who deserves to be protected.

Kavanaugh’s opinion contains a long lyrical tribute to female
athletes. “They spend extraordinary time and effort to train in the
heat and in the cold, to work out early in the morning and late at
night, to get a little faster, to become a little stronger, to jump a
little higher, to shoot a little better, to watch a little more video,
to make the lonely journey back from an A.C.L. tear, to scrap for
playing time, to start, to win the game, to win a championship, to
hang a banner, to bring home a medal, to be all-tournament,
all-County, all-State or all-American,” he writes, adding,
“Whether the star of the team or the last player on the bench, they
form lifelong friendships and lifetime memories.”

Sotomayor’s dissent, too, includes a description of a young person
in love with her sport. Referring to a plaintiff by her initials,
Sotomayor writes, “B.P.J.’s mother reports that B.P.J. ‘has had
the time of her life participating on these teams.’ She has watched
B.P.J. make close friends and gain a sense of belonging. Her mother
recalls taking B.P.J. to practice after hours and on weekends, and
often witnessing B.P.J. practicing her form in the backyard ‘by
herself, for hours.’ Above all, her mother explains that B.P.J.
‘is the happiest I have ever seen her when she is accepted for who
she is and able to participate in school sports.’”

Kavanaugh and Sotomayor are looking at different athletes: He is
describing cisgender girls, and Sotomayor is focusing on one of the
plaintiffs in the case, a West Virginia high school student named
Becky Pepper-Jackson
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who was excluded from middle school sports after her state enacted
legislation banning the inclusion of trans girls in girls’ sports.
(When a district court found West Virginia’s law likely to be
unconstitutional, Pepper-Jackson joined her school’s track and
cross-country teams.)

Read the Supreme Court’s recent ruling on transgender athletes —
the majority’s decision, written by Justice Brett Kavanaugh, and the
dissent, written by Justice Sonia Sotomayor — and you will see the
members of the court arguing about something more fundamental than the
law. They are arguing about who should be seen, whose story ought to
be heard and who deserves to be protected.

Kavanaugh’s opinion contains a long lyrical tribute to female
athletes. “They spend extraordinary time and effort to train in the
heat and in the cold, to work out early in the morning and late at
night, to get a little faster, to become a little stronger, to jump a
little higher, to shoot a little better, to watch a little more video,
to make the lonely journey back from an A.C.L. tear, to scrap for
playing time, to start, to win the game, to win a championship, to
hang a banner, to bring home a medal, to be all-tournament,
all-County, all-State or all-American,” he writes, adding,
“Whether the star of the team or the last player on the bench, they
form lifelong friendships and lifetime memories.”

Sotomayor’s dissent, too, includes a description of a young person
in love with her sport. Referring to a plaintiff by her initials,
Sotomayor writes, “B.P.J.’s mother reports that B.P.J. ‘has had
the time of her life participating on these teams.’ She has watched
B.P.J. make close friends and gain a sense of belonging. Her mother
recalls taking B.P.J. to practice after hours and on weekends, and
often witnessing B.P.J. practicing her form in the backyard ‘by
herself, for hours.’ Above all, her mother explains that B.P.J.
‘is the happiest I have ever seen her when she is accepted for who
she is and able to participate in school sports.’”

Kavanaugh and Sotomayor are looking at different athletes: He is
describing cisgender girls, and Sotomayor is focusing on one of the
plaintiffs in the case, a West Virginia high school student named
Becky Pepper-Jackson
[[link removed]]
who was excluded from middle school sports after her state enacted
legislation banning the inclusion of trans girls in girls’ sports.
(When a district court found West Virginia’s law likely to be
unconstitutional, Pepper-Jackson joined her school’s track and
cross-country teams.)

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
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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,
she notes, 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.”

The majority opinion seems to acknowledge that sport participation is
indeed a form of participation in society — a pathway to that
“full citizenship stature.” Kavanaugh writes that since 1972, when
the law first required all schools to give girls a chance to take part
in sports, “those lessons and experiences in sports have empowered
millions of American women who have gone on to thrive in all aspects
of American life.” Still, he writes, “regulations cannot and do
not guarantee every student a spot on a team’s roster.”

Sports can be an instrument of inclusion. So can the law. But in the
hands of this court, the principles and practices that were once
intended to enfranchise more people often become, instead, tools of
exclusion.

_M. Gessen is an Opinion columnist for The Times. They are the winner
of the 2026 Pulitzer Prize for opinion writing. They are the author of
11 books, including “The Future Is History: How Totalitarianism
Reclaimed Russia,” which won the National Book Award in 2017. _

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* transgender
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* transgender equality
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* gender equality
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* SCOTUS
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