In the wake of the Supreme Court’s ruling in West Virginia v. B.P.J. and Idaho v. Hecox, which allow states to exclude trans girls from girls’ team sports, we’ve been seeing renewed calls for Supreme Court reform. We absolutely need to reform the court and restore the balance of power in an institution that decides so much of our basic rights. But that’s not the solution to this issue.
To be unequivocal, the Court needs reform. It is ludicrous that a president who is limited to a maximum of eight years in office can appoint a justice who might decide some of the most fundamental aspects of our nation for the next fifty years (good health and a desire to stay on the Court allowing). And a system that allows a single president, through luck or misfortune, to appoint one-third of the justices on the bench and fundamentally rewrite the law if they are so inclined is wild.
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Too many times, we’ve seen how supposedly nonpartisan judges vote along party lines, issuing endless 6-3 decisions granting the president what he wants. (Yes, they ruled against Trump’s bid to end birthright citizenship, but when the bar is “didn’t erase a constitutional amendment that has stood for more than half of this country’s existence,” that bar is on the ground.) We have seen the minority dissent too many times, not because of disagreement over technical legal issues but as an indictment of the majority’s decision to act politically.
Expanding the Court to rebalance it and instituting term limits (both suggestions made by people with deeper legal understanding than I possess) would help to redress those problems and allow it to act as intended rather than as an additional arm of the executive branch.
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But that is not what happened here. Here, the problem is something different.
B.P.J. and Hecox were decided on the merits of whether Idaho’s and West Virginia’s bans violated Title IX and the Equal Protection Clause of the Fourteenth Amendment. Title IX bans discrimination on the basis of sex in education, while the Equal Protection Clause requires the law to treat individuals in similar situations equally.
The Title IX aspect of the case was unanimous, with liberal Justice Sonia Sotomayor writing in her partial dissent that “B.P.J.’s Title IX claim fails, although on a narrower basis than that on which the majority relies.”
Regarding the Equal Protection Clause, Sotomayor didn’t think the Court should have ruled that the bans violated it, but rather that additional information was needed and that it should have been remanded to the District Court for further discussion. She was joined in that opinion by both Justice Elena Kagan and Justice Ketanji Brown Jackson, the Court’s two other Democratic appointees.
Were the Supreme Court stacked with 17 liberal justices, there’s nothing to say that the ruling wouldn’t have been the same.
The problem in this particular case is not that the Court is broken and needs fixing. The problem is that it serves a systemic purpose and that purpose isn’t what we’d sometimes like it to be. The Court’s job is not to decide what is right, fair, or just. It is to interpret what the laws mean. It’s not there to decide what the law should be, but what the law is.
The impact of this ruling is going to be awful, and our society should not be blocking trans people from playing sports on teams that align with their gender identities. The Court has interpreted the law and said that it allows for discrimination against trans children. This is a sign that we need our legislators, state and federal, to work to fix that law.
The ruling, effectively, left the matter up to the states. Some small silver lining to the awful decision is that they didn’t say that Title IX means states have to discriminate against trans people, only that they may discriminate against them. States that say that trans kids must be allowed to join teams in line with their gender identity can still do so.
We need states to stand up and get laws on their books that enshrine trans rights and protect trans people from discrimination, ideally by adding them to their state constitutions.
But we also need to fix the root causes at the federal level.
The Court said that “as it was written, when it was written, this is what Title IX means.” If that’s what Title IX means, then we need to fix Title IX. That’s a job Congress can do if we can get the majority back again through 2026 and 2028. Leaving all of the blame at the Court’s doorstep lets Congress and our lawmakers off the hook too easily.
Reforming the Court is a long-shot effort that many will oppose. While it has been raised by some big names with a shot at the presidency, getting it done will be a monumental task that will likely require eliminating the filibuster and taking many years to boot. We should absolutely push for that reform.
But for issues like this, the Court has decided how a law should be interpreted. A simple majority in the House of Representatives and the Senate would be enough to say, “Well, that’s not how we want it interpreted, so we’ll rewrite it more explicitly.” If there’s too much dispute about what someone meant by “sex” back in 1975, we can rewrite it in modern language for a modern understanding as part of a modern society.
So yes, by all means, let’s reform the Court. But when it comes to Title IX, let’s tell our members of Congress (and our 2026 and 2028 congressional candidates) that we want these laws updated. We need to build these protections of fundamental rights into our laws, and if a law allows for discrimination against a marginalized group, we should rewrite that law.
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