By Stuart Gaffney and John Lewis—
Late last month, the conservative Republican supermajority of the U.S. Supreme Court issued a deeply flawed decision, upholding state bans on transgender girls and women playing in school sports. Significantly, the ruling does not require all states to exclude trans athletes from girls’ sports; it only applies to states with such bans. But that still means that thousands of trans girls and women, like lead plaintiff Becky Pepper-Jackson, the wonderful West Virginia teen who brought her case when she was just eleven years old, will no longer be able to play the sports they love. Justice Brett Kavanaugh’s opinion for the majority was so unfounded, disrespectful, and callous that we felt a sense of grief reading it.
From the get-go, Kavanaugh misgenders Becky and all other trans girls and women who seek to play school sports, by referring to them as “biological males” who, he says, “identify as female.” Becky is not a “biological male”—she is a girl.
Although Becky was born with male genitalia and assigned the sex marker “male” at birth, Becky’s brain, the part of the human body that determines a person’s fundamental comprehension of their sex, is unquestionably part of her “biology.” Becky recognized that she was female very early in life, and, because of her mom and dad’s unconditional love and care (and her older brothers and grandparents’ support), she has been able to live happily and authentically as the girl she is for years. Becky began taking medication very early on to prevent her from undergoing any aspect of typical male puberty and enable her instead to experience typical female hormonal puberty. In every possibly relevant sense of “biology” here, Becky is a girl.
Justice Ketanji Brown-Jackson in her dissent puts it simply and clearly: Becky’s home state of West Virginia’s categorical ban on trans girls and women in sports “forces” Becky “to live—in this case, to play—as a boy though she is a girl.” We consider transgender girls and women to be gifts to the world and to any school sport they choose to participate in. Discriminating against them clearly violates both Title IX, which prohibits educational institutions that receive federal funding from discriminating on the basis of sex in sports, as well as the equality guarantees of the U.S. Constitution.
Sadly, the Supreme Court’s Republican supermajority abdicated its role in upholding the Constitution and acted without sound legal or factual basis in what Justice Sotomayor characterizes as a “slapdash manner.” The Court’s decision validates, emboldens, and could even be considered part of the ongoing Republican social, political, and legal onslaught against trans people.
One example of the unsoundness of Kavanaugh’s analysis is his reliance on bans the NCAA (National Collegiate Athletic Association) and USOPC (U.S. Olympic & Paralympic Committee) imposed on trans women during the first half of 2025. As Sotomayor points out, Kavanaugh completely “ignores” the obvious political context in which the two organizations acted. After vilifying trans people in unprecedented ways in his presidential campaign, President Trump on his very first day back in office issued a sweeping executive order against them, which, as Sotomayor explains, “threatened to take away federal funding from any educational program that allowed transgender girls and women to participate on girls’ and women’s sports teams.” Less than three weeks later, the NCAA announced its new anti-trans policy, with the USOPC following suit four months later. This timing unquestionably undermines the credibility of these policies as factual bases for the Court’s decision.
We found the most disturbing part of the decision to be Kavanaugh’s 350-word concluding proclamation about “the nature and reality” of sports. He writes as if, just because he has coached girls’ basketball teams for years, he is the definitive authority on sports, in particular, women’s athletics, so much so that he can enshrine his subjective personal views as part of Supreme Court jurisprudence. They have no place there, and Kavanaugh does not offer even a single record citation to support them.
Kavanaugh also seems to characterize all girls’ school sports as brutal environments, in which self-interest predominates. At the outset, he declares school sports to be “highly competitive and generally zero sum,” in which “[a]t almost every turn, someone wins and someone loses.” With seeming approval, he describes girls “obsess[ing] about” winning.
Kavanaugh appears oblivious to the fact that the law before the Court is West Virginia’s categorical ban on trans girls participating “even in intramural or non-competitive sports” and mandates that trans girls “never participate in girls’ sports at any age or level of competition.” Becky herself offers a very different view of her experience playing school sports: “We learned about teamwork, having a positive attitude, and how to have fun while being competitive.”
Moreover, the legal question before the Court was the application of Title IX and the U.S. Constitution to West Virginia’s exclusion of trans girls and women in school sports under all circumstances. Title IX exists to ensure equality in sports in the context of their educational value. Kavanaugh provides not a shred of analysis as to how his view of school sports furthers education.
Finally, Kavanaugh’s last two sentences read to us like a dagger to the heart. They describe how student athletes “form lifelong friendships and lifetime memories” and “savor their athletic accomplishments” … for years, even decades, after their playing days are over.” Kavanaugh extols the enduring value of school sports in an attempt to buttress the Court’s ruling. Instead, he exposes its cruelty: Becky and other trans girls in states with bans will be excluded from this very opportunity for joy and belonging. The Supreme Court and the state of West Virginia have unceremoniously cut Becky from her school track team and denied her the ability to continue to play sports with her friends and teammates she has known for one third of her life.
Despite this, Becky is showing us the way forward. As Becky’s mom Heather wrote in a USA Today op-ed the day of the decision, Becky often needs to remind her: “‘Don’t judge them like they judge us.’” She said Becky has “never flinched, and she’s still smiling.”
About a year ago, Becky had just finishing having dinner with her mom at a Chinese restaurant, and when she opened her fortune cookie it read: “Your involvement in sports will inspire others to reach for their dreams.” Even though the Supreme Court ruled against her, her fortune is still coming true. Becky is inspiring countless other trans people, athletes and nonathletes alike, to live as their true selves with pride, fearlessness, and joy. The world is a better place with her in it.
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed to making same-sex marriage legal nationwide in 2015. Today, they continue to educate and advocate for marriage equality and LGBTIQ+ rights worldwide.
6/26 and Beyond
Published on July 16, 2026
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