Supreme Court Weighs Womens’ Sports Cases, Likely to Rule in Favor of States: Attorney

For analysis, we welcome Anastasia Bowden, civil rights attorney at Pacific Legal Foundation and Scotas's blog columnist. Good to have you with us today, Anastasia. >> Thanks for having me. >> Now, plaintiffs are arguing that these state level bans on boys participating in girls sports violates the 14th amendment. Looking at the argument so far, which points stand out to you as strongest? Yeah, I think the justices are really concerned with the reach of each side's arguments. So, here the challengers are saying um they're really focusing on not just a broad ban, but the fact that there might be some transgender women who have mitigated uh their advantages, for example, by reducing their level of testosterone. And the justices are saying, okay, well, if the state requires an exception for you, then can it require exceptions for men? Not even transgender women, but just men who can't compete in their own sports because they don't enjoy the same physical advantages as uh as typical males. You know, they're shorter, they happen to have less testosterone. How many exceptions do we have to allow and how many men do we have to allow uh to compete in women's sports? On the other side of the ledger, we have justices asking about the limits of that side's arguments. So, the states here argue that we need to separate men and women in sports because men and women are different. And the justices are probing, well, what about certain classes? We know that men and women uh perform differently in certain subjects. Does that now allow states to require separate classes for them or only remedial measures for men if they perform um not as well as women on certain subjects and women can be excluded from those subjects. So, it's very interesting to see the justices not just focus on the arguments at hand, but the reach of both sides arguments. >> Yeah. And based on what you've seen, how do you think the Supreme Court might rule and why? >> I think it almost certainly will rule in favor of the states here. Um I we can we know from last term that uh the justices are skeptical that these laws that uh purportedly discriminate on the basis of transgender status discriminate based on sex. They say no, this is different. Discriminating against transgender people is not sexbased discrimination. Um, and so, you know, Justice Barrett also indicated last term that even if we think that these laws discriminate against um, transgender people, that doesn't entitle them to any heightened protection because historically transgender people haven't been subject to legal discrimination. So, we're not going to treat them different or give them more protection under the equal protection clause. That concurrence that she wrote is not binding, but it's a pretty good indicator of where the court's head is at. So, I think they're going to say that the state has a good enough interest here to protect women in women's sports. Um, transgender people do not get any special protection, and they're going to defer to the state to allow the state to uh protect women as they wish. >> If the states win, what will that all mean for women and girls sports across the country? >> Well, it doesn't mean that men and women must be separate in sports. um 23 states allow transgender women to uh play in women's sports. It just means that those states, those 27 states who choose to act and protect women in women's sports may do so constitutionally um and legally under our civil rights laws. So it just it allows states to act, but it doesn't require states to to act any one way. And I think you know all of this is uh borne out. You're asking me how can we read the tea leaves here? One indication of how we can read it is the cover of Washington Post today which says neither science nor public opinion supports the challengers in this case. I mean wow what the tide has really turned here and um I think that public change of opinion is definitely going to be influential in the way that the court rules. >> Yeah, fascinating. Um some are arguing that privacy and safety are actually at stake here in this case. How much do you think those concerns might influence the justices? >> Well, it's really interesting because typically we think of privacy and safety on behalf of the women who do not want uh uh people who were born male in the locker room. I think it's interesting to see the challengers here sort of weaponize or change that argument. Um, when we're talking about some people have said, "Well, if we allow uh exceptions for trans women who have lower testosterone, um, then you're going to invade their privacy by forcing them to be subject to constant, um, monitoring and testosterone testing, um, which is can be very invasive, requires blood tests and hormone tests and all these things." And so, it's interesting to see both sides invoke, uh, this interest in privacy. But ultimately, I think the most salient thing, the things the things from oral argument, the arguments that hit the most were the ones that come to people from a common sensical point of view. I mean, where do we really think the privacy concerns lie? They lie with the women who want to be saved in their locker rooms. And so, ultimately, I think those are the types of arguments, the common sense ones that are going to win the day. And this really this whole um case really comes to the heart of something that's been an ongoing discussion within US society and culture in recent years. Is there anything missing from the discussion at this point that you think needs to be highlighted more just to finish? >> Yeah. Well, I think um it's interesting that the challengers have talked about well science is evolving. um you know, we don't really know about what gives trans women a advantage in women's sports and so we shouldn't allow the state to act so bluntly. But in reality, if science is evolving, you'd think the answer would be to defer to the states and to allow them to tackle this problem as it comes and to to protect women as as they see best. Um and so ultimately, again, I just think that's common sense to people. I think it's the the pulse of public opinion and um it's the reason that the court is going to come down in the state's favor. >> Well, great to hear your insights today. Thank you so much for your time, Anastasia Bowden. >> Thanks for having me.