Justices Amy Coney Barrett and Brett M. Kavanaugh, along with Chief Justice John G. Roberts Jr., are the justices most likely to be in the majority in recent years, so their votes typically help determine the outcome of major cases.
And there are some indications from their questions at oral argument and from their writings in past cases of how Justices Barrett and Kavanaugh view the issue before the court.
When the Supreme Court considered in 2024 whether Tennessee could ban certain medical treatments for transgender adolescents, Justice Kavanaugh appeared concerned about the implications a ruling against the state and in favor of transgender rights would have on women’s sports.
“What would that mean for women’s and girls’ sports in particular?” he asked the lawyer for the Biden administration.
“Would transgender athletes have a constitutional right, as you see it, to play in women’s and girls’ sports, basketball, swimming, volleyball, track, etc., notwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes seen in the amicus brief of the many women athletes in this case?” he continued.
Justice Barrett followed up, asking a similar question of the lawyer defending Tennessee’s law.
The court divided 6 to 3 along ideological lines in June when it upheld the state’s ban on gender transition care for minors. Justice Barrett, who was in the majority, wrote separately to say that the court should have gone further and considered whether transgender status warranted heightened scrutiny — and then ruled that it did not.
By failing to do so, Justice Barrett wrote, the court had left a whole range of other laws that she indicated were plainly constitutional — including ones involving eligibility for boys’ and girls’ sports teams — vulnerable to future litigation.
Ann Marimow covers the Supreme Court for The Times from Washington.
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