‘Trans’ Athletes Cases Give SCOTUS A Shot At Redemption

A pair of upcoming cases set to come before the Supreme Court next term will give the justices an opportunity to close off a legal loophole exploited by radical LGBT activists. The question is: Will they take it?

Last week, the nation’s highest court announced that it added two cases to its 2025-2026 docket centered on state laws barring trans-identifying men from competing in women’s sports. According to the left-wing SCOTUSblog, the justices will determine whether the statutes “violate the equal protection clause of the 14th Amendment” or, in one of the cases, Title IX.

The revelation came weeks after the high court ruled in U.S. v. Skrmetti that state laws prohibiting harmful transgender procedures on minors are constitutional. Writing for the majority (6-3), Chief Justice John Roberts noted that the Tennessee law in question “does not violate equal protection guarantees,” and that, “Questions regarding the law’s policy are thus appropriately left to the people, their elected representatives, and the democratic process.”

While the ruling was undoubtedly a win for parents and states seeking to protect children from destructive trans procedures, the court’s majority decision failed to effectively close off a legal avenue exploited by pro-trans activists seeking to advance their untoward ideology through the courts.

The issue at hand can be found in concurring opinions authored by Associate Justices Samuel Alito and Amy Coney Barrett (with Associate Justice Clarence Thomas joining the latter’s opinion). In summary, the three justices affirmatively argued that “transgender” is not a suspect class.

As described by Cornell Law School, “Suspect classification refers to a class of individuals who have been historically subject to discrimination” within the law. Among the most notable suspect classes are race and religion.

According to the school, “When a statute discriminates against an individual based on a suspect classification, that statute will usually be subject to either strict scrutiny or intermediate scrutiny.” “To pass strict scrutiny,” it continued, “the law or policy must both satisfy a compelling government interest and be narrowly tailored to satisfy that interest.”

If a court determines a law or policy is subject to strict scrutiny, it falls upon the government to demonstrate that such statutes are “narrowly tailored to advance a compelling governmental interest and that the law is the least restrictive means of serving that interest,” according to the Congressional Research Service.

Left-wing plaintiffs — including those in Skrmetti and at least one of the aforementioned women’s sports cases — have often proclaimed transgender to be a suspect class in their challenges to policies recognizing biological reality. The use of this argument in future litigation to get courts to apply a higher level of scrutiny to such laws was even telegraphed by the leftist Center for American Progress shortly after the release of SCOTUS’s 2020 Bostock v. Clayton County decision. In that case, the majority unilaterally declared that so-called “gender identity” is covered under the Civil Rights Act’s Title VII protections.

But it’s clear from their Skrmetti concurrences that neither Alito nor Barrett (and by default, Thomas) are buying what these left-wing attorneys are selling.

In his opinion, Alito argued that the Supreme Court’s past “decisions have identified certain key factors that transgender individuals do not share with members of suspect and ‘quasi-suspect’ classes.” He further noted, “Transgender status is not ‘immutable,’ and as a result, persons can and do move into and out of the class.”

“Members of the class differ widely among themselves, and it is often difficult for others to determine whether a person is a member of the class,” Alito wrote. “And transgender individuals have not been subjected to a history of discrimination that is comparable to past discrimination against the groups we have classified as suspect or ‘quasi-suspect.’”

Barrett (joined by Thomas) echoed similar sentiments, writing, “The conclusion that transgender individuals do not share the ‘obvious, immutable, or distinguishing characteristics’ of ‘a discrete group’ is enough to demonstrate that transgender status does not define a suspect class.”

Despite Alito’s insistence that the high court “confront” the question of whether transgender status “warrants some form of heightened scrutiny,” the majority opinion in Skrmetti did not offer a definitive answer on the issue. While Thomas, Alito, and Barrett were willing to declare that transgender is not a suspect or “quasi-suspect” class, at least two (or all) of the other three justices in the majority — Roberts, Neil Gorsuch, and Brett Kavanaugh — were not.

(It’s worth mentioning that both Roberts and Gorsuch were in the majority in the high court’s Bostock decision.)

The Skrmetti majority’s declination to go the way of Alito, Barrett, and Thomas in affirming that transgender is not a suspect class seemingly did not go unnoticed by radical LGBT activists. Shortly after the release of the decision, a trans-identifying attorney for the plaintiffs issued a statement signaling continued legal action against laws and policies that do not indulge leftists’ gender ideology.

“Though this is a painful setback, it does not mean that transgender people and our allies are left with no options to defend our freedom, our health care, or our lives,” said the ACLU’s Chase Strangio, a male-pretending woman. “The Court left undisturbed Supreme Court and lower court precedent that other examples of discrimination against transgender people are unlawful. We are as determined as ever to fight for the dignity and equality of every transgender person and we will continue to do so with defiant strength, a restless resolve, and a lasting commitment to our families, our communities, and the freedom we all deserve.”

What Roberts, Gorsuch, and/or Kavanaugh failed to do in Skrmetti, they now have a chance to rectify in next year’s cases on trans-identifying men in women’s sports. Should they fail to join their fellow Republican-appointed colleagues in obliterating the falsehood that “trans” individuals are a suspect class, left-wing attorneys’ abuse of classification standards in their legal onslaught against biological sex will undoubtedly continue unabated.

Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood