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2 Supreme Court Justices Dissent on Ruling in Key Transgender Case

A majority of the Supreme Court on Thursday allowed a transgender individual to continue to participate in a girls’ track team as a lower court considers the case—but two justices dissented.

Justice Samuel Alito, in an opinion (pdf) backed by Justice Clarence Thomas, wrote that the dispute that was dismissed on Thursday “concerns an important issue that this Court is likely to be required to address in the near future.” They noted that the issue stems from whether states can restrict “participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics” in light of various laws that either block or allow transgender individuals to compete in female sports.

The Supreme Court on Thursday declined to intervene in a West Virginia law that bans males from competing in female sports. In a brief order that was not signed, the justices declined an emergency request to lift a lower court’s injunction that allowed the male to compete until the three-judge appeals court comes to a final decision on the matter.

Both Alito and Thomas, considered by many to be the Supreme Court’s most conservative members, wrote that they would have granted the state’s request to enforce its law. “I would grant the State’s application,” Alito wrote. “Among other things, enforcement of the law at issue should not be forbidden by the federal courts without any explanation.”

While it is “true that West Virginia allowed the District Court’s injunction to go unchallenged for nearly 18 months before seeking emergency relief,” Alito wrote that “a divided panel of a lower court has enjoined a duly enacted state law on an important subject without a word of explanation, notwithstanding that the District Court granted summary judgment to the State based on a fact-intensive record—the State is entitled to relief.”

“If we put aside the issue of the State’s delay in seeking emergency relief and if the District Court’s analysis of the merits of this case is correct, the generally applicable stay factors plainly justify granting West Virginia’s application,” dissented Alito, who was appointed by former President George W. Bush. Thomas was appointed by former President George H.W. Bush.

The divided court in reference—the U.S. Court of Appeals for the Fourth Circuit—issued an injunction that blocked enforcement of the law but “provided no explanation whatsoever for its decision,” he said.

The order stemmed from a lawsuit by civil rights organizations including the American Civil Liberties Union (ACLU) and Lambda Legal on behalf of a 12-year-old, who alleged the law is unconstitutional because it discriminates. District Court Judge Joseph Goodwin wrote in January that such restrictions enacted under West Virginia law are permissible because the legislature’s definition of “woman” and “girl” are “substantially related to the important government interest of providing equal athletic opportunities for females.”

Then the groups and 12-year-old appealed, and the 4th U.S. Circuit Court of Appeals ruled in February that the law’s enforcement would be blocked until it is further considered. That prompted West Virginia Attorney General Patrick Morrisey to file an emergency appeal with the Supreme Court.

“This is a procedural setback, but we remain confident that when this case is ultimately determined on the merits, we will prevail,” Morrisey said after the Supreme Court’s brief order Thursday. “We maintain our stance that this is a common sense law—we have a very strong case. It’s just basic fairness and common sense to not have biological males play in women’s sports.”

In recent months, some Republican-led states have passed laws that prohibit biological males from playing in girl’s and women’s sports, namely after transgender swimmer Lia Thomas won an NCAA Division I title after finishing first in the women’s 500-yard freestyle race last year. Some female athletes have spoken out, saying that biological males possess physical attributes that provide them with an unfair advantage over biological women competitors.

A former teammate of Thomas, Riley Gaines, said Thursday that she was physically assaulted at a San Francisco State University speech about protecting women’s sports. She alleged that transgender activists surrounded her and backed her into a room, where she remained for several hours before she escaped.

“The prisoners are running the asylum at SFSU … I was ambushed and physically hit twice by a man,” Gaines wrote Twitter post. “This is proof that women need sex-protected spaces.”

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