SCOTUS Opts Not to Decide Transgender Bathroom Case | Opinion

The Supreme Court has declined to review a divided lower court decision giving a transgender student the right to use a bathroom that corresponds to their chosen gender identity. This decision may signal that the justices are divided on the bathroom issue, as well as others related to transgender rights that are even more controversial and difficult. Some of the justices may feel that the questions involved require more experience and time to work their way through the courts before the High Court can issue a broad decision granting equal right to all transgender people in all contexts, as it has essentially—and correctly—done with regard to gay rights.

The bathroom issue is not a difficult one as a matter of law or equity. No one is hurt or disadvantaged if a transgender woman is allowed to use a woman's bathroom, especially if a more private gender-neutral bathroom is available to any cis-woman who chooses not to use the more inclusive one.

The bathroom issue is very different from the problem of athletics, which has been raised not only by conservative opponents of transgender equality but by some liberal supporters of women's sports as well. As Donna Lopiano, who headed the Women's Sports Foundation for 15 years, put it: "I don't know of a woman athlete who doesn't want trans girls to be treated fairly. But the cost of treating her fairly should not come at the cost of discriminating against a biologically-female-at birth woman."

It is true that a person born as a male who transitions into a female may have a biological advantage over a competitor who is born female. But biological advantages are inherent in all completive sports. A person with tall, muscular, fast or smart genes has a biological advantage. The difference is that the person who has transitioned from male to female has made a choice (at least according to some), although it is unlikely that they did so to gain a competitive advantage in sports. If any such situation were to arise, it should be decided on an individual basis.

Supreme Court group photo
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on April 23, 2021. Erin Schaff-Pool/Getty Images

A number of cisgender female athletes have claimed that they were denied a level playing field by the inclusion of male-born athletes in female competitions, but it is unclear how widespread this problem is, or whether the complaints are in any way representative or merely anecdotal.

Some of the opposition to transgender rights simply reflects traditionalist moral views that are increasingly out of step with today's egalitarian, open world. But some of it is also based on real, tangible concerns that can be addressed without denying equality.

Absent compelling evidence of systematic disadvantage amounting to discrimination, the presumption of equal treatment should prevail, and transgender athletes—like transgender people in general—should be treated equally in accord with their chosen gender identity.

I think the Supreme Court will eventually reach the same conclusion as a matter of constitutional and statutory law. But the decision not to rule on the bathroom case now suggests that it may take time. There is no guarantee that the current Supreme Court will issue a pro-transgender rights decision, and it is better to have no decision than a bad one that could serve as a precedent for years.

In order for the Supreme Court to require equality as a matter of constitutional law, it need not decide the contentious issue—which is both empirical and moral—of whether a transitioned woman who was assigned a male gender at birth was "really" always a woman. That issue can be left to biologists, psychologists and philosophers, but it is not an issue that need concern the justices, whose job is to implement the equal protection clause of the United States Constitution, which should always be construed to maximize equality for all.

Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, "The Dershow," can be found on Spotify, YouTube and iTunes. His most recent book is The Case Against the New Censors.

The views expressed in this article are the writer's own.