So the United States Supreme Court refused to intervene in an ongoing case involving
West Virginia's law banning transgender girls from participating in girls sports
teams at school.
According to the Hill in a brief, unsigned order, the justices denied
the state's emergency request to lift an appeals court's injunction,
which enabled a transgender girl to compete on her middle school's
female teams until the three judge panel reaches a final decision.
Now, let's back up so that we can better understand this case and
take a look at West Virginia's law and what the trans athlete,
Becky Pepper Jackson who challenged this law is arguing.
Now, in 2021, West Virginia became the seventh state in the nation to enact
a law prohibiting transgender women from competing on female sports teams.
According, again, to the reporting from the Hill,
the measure officially titled the Save Women's Sports Act bars,
transgender female athletes been participating in sports, consistent with
their gender identity in public elementary schools, high schools, and universities.
Now, the law was enforced despite West Virginia's Governor's
inability to provide a single example in which trans women
have had unfair advantages in women's sports within the state.
West Virginia's law was challenged by a 12 year old middle school transgender girl
who we mentioned earlier is named Becky Pepper Jackson.
Becky, who entered middle school in the fall of 2021 had been planning to
try out for her school's cross country team when the law took effect.
She alleges the law is unconstitutional,
because it discriminates based on sex and transgender status.
She has lived as a girl since fourth grade.
She's now receiving puberty delaying treatment and estrogen hormone therapy.
So she has not experienced and will not experience endogenous puberty.
So this means that she won't experience any of the physiological characteristics
of puberty experienced by typical boys who will instead develop
physiological characteristics consistent with hormonal puberty of typical girls.
The Hill also stated that a federal district judge had handed Becky
a preliminary victory before reversing course in his final ruling in January.
Becky appealed, and a divided three-judge panel blocked the ban's enforcement until
the panel could consider the dispute in full.
So this is at the point when the Supreme Court was to intervene in the case.
But thanks to the Supreme Court's refusal to meddle with West Virginia law.
Becky is going to have her day in court, and
the appeals panel is now set to hear the student athletes appeal in full.
The case could ultimately return to the Supreme Court down the road.
So we've got a little bit more,
some of the things being said that indicate what the Supreme Court might
decide on this issue when it eventually does come before them.
But first time I'm gonna bring you guys in on this.
First, I'm offended by calling it the Save Women's Sports law, bill,
whatever they referred to it as, because they don't care about women's sports.
None of the people saying these things actually care about women's sports.
They don't talk about the inequity in funding women's sports.
They don't talk about the lack of programs for
women to develop in sports from the young age, or they don't talk about sexual
harassment that we've seen institutionally within women's sports.
They just hate trans people.
At least, that's my opinion on it.
But Ben, why don't you get in here on this first?
>> Yeah, I think this is a rare bit of good news from the Supreme Court from
the conservative Supreme Court.
So it's somewhat surprising, and I would like to on air correct something I've
said on the air too, cuz I've not always been very well educated on this issue.
And pretty recently, I even said on air on TYT that I didn't think that
it was necessary for transgender women particularly to compete on
female sports teams and never had an issue with it the opposite way.
So I never viewed it as something that was in any way against the trans community,
because I just was trying to also protect what I did view as unfair advantages.
And then a lot of people on Twitter educated me on it.
And I had a lot of conversations after that episode recently, and
read a lot of research and changed my opinion on that.
I realized that there is so much misinformation out there.
And, in fact, that if a transgender woman is on hormone therapy for
one to two years, practically all advantages do disappear.
And so in that case,
it does seem completely unnecessary to create another wedge issue and
to deny people the sports team that they identify with and
that they would be that they feel they should be able to compete on.
And there is no epidemic of transgender women that are also winning
female sports as well.
So the issue does seem to be one that is just designed yet
again to drive people apart and I fell victim to it as well.
So I'm glad that I was able to evolve on that, and
looks like the Supreme Court is even open minded on it.
And so hopefully, a lot of people can be more open to data and
less just relying on what might hit their brain in a certain way and
make a rash knee jerk reaction to it.
>> So what's interesting here is any victory for
trans people is a victory worth celebrating.
There are not that many to go around, but this is not a situation that's over.
I mean, the Supreme Court didn't decide the case.
It just sent it back to West Virginia to conclude.
This will eventually make its way back to the Supreme Court, where we see now that
two justices are already comfortable saying that they would not support it.
And this is really a wake up call that until we actually push Congress to
get protections for transgender Americans, we're taking a big gamble
putting all of our eggs on the Supreme Court to do the right thing.
I think we've seen that they do not, and I would love to
see this as a big motivator for other action that's more durable.
>> Yeah, exactly, and to that point, now,
we can discuss a little bit about what the justices have said.
So they refused to at this point intervene in the case.
But there was a dissent from conservative justices, Clarence Thomas and
Samuel Alito, and
it's really telling about where the court is out with trans rights.
So Business Insider reported from that dissent,
they stated I would grant the state's application.
Alito and Thomas said in their dissent, among other things, enforcement of the law
at issue should not be forbidden by the federal courts without any explanation.
The dispute concerns an important issue that this court is likely to be required
to address in the near future, particularly whether states can restrict
participation in women's or girls sports based on genes, or physiological, or
anatomical characteristics.
So I'll say the Supreme Court, which looks fairly similar.
There's been some changes when it decided Bostock versus Clayton County in 2020
as it does now.
A lot of the same justices,
particularly conservative justices were on the court then.
And that was the case, where they decided that it is illegal to
discriminate against transgender individuals.
These cases about employment, but
the opinion was signed on to by justice Roberts.
And it was actually written by the Conservative Justice Gorsuch,
which was genuinely surprising.
So there is some hope when this issue does come before the Supreme Court.
But I think Max,
what you were touching on is we can't expect them to be consistent, right?
The conservative justices says within the Supreme Court have shown that they're
willing to change their minds on any issue.
And it seems like at the whim of the federalist society and what the right wing
billionaire donor class has decided that they should be deciding that
[LAUGH] as the right response to that issue at any given time on any given day.
And Justice Roberts in particular is not someone I see as someone with a backbone
to stand up for anything that he might even personally believe and
he will in my opinion roll over.
But there is this sort of precedent there among the conservative justices.
At least those two that they might vote in favor of issue
deciding trans rights, but we'll have to wait and see.
>> Yeah, I think also something else that is worth noting when
people try to use this as an issue to drive the country further
apart is to look at the highest levels of athletic performance.
And something that also was brought to my attention is that the Olympics has
allowed this for a very long time already.
Has allowed transgender athletes to compete in the sport that matches their
identity.
And to this date, also, a transgender athlete has not won and
that's at the elite levels.
And so not that we wouldn't encourage them to win the sport, but the point simply
being that it proves that even at the level where the Olympics you always see,
of course, as the best, it's the standard bearer for what sports should be.
And if the International Olympic Committee is comfortable with it, then why shouldn't
lower levels of athletic competition be comfortable with it?
So that seems to be a great parameter to be able to decide on this issue and
not let politicians that can't cite one case of the thing they are making
the most urgent issue be what brings their opinion to a decision.
>> I think that's a great point.
I mean, one of the challenges here is that we have successfully for
years allowed Republicans to essentially treat medicine as politics.
And when you treat medicine as politics, truth and facts become negotiable and
we're seeing that play out in the courts here.
But I think this is still a victory, but I mean, there is an uphill battle here.
And what we need is for our actual elected branches to step up and
make up the difference, because it is just not happening with the courts right now.
>> Yep, it's definitely an uphill battle and
we will keep everybody informed on it as it continues with this case and
the battle for trans rights and civil rights in this country.