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Samuel Alito dissents, with Clarence Thomas, against a transgender girl

The case involving West Virginia’s trans sports ban might not be the last word on the issue. Alito and Thomas could have more backing next time.


The Supreme Court on Thursday sided with a transgender girl and against West Virginia officials trying to stop her from playing sports with girls. That might be a somewhat surprising sentence to read about the Republican-controlled court, but it also might not be the last word on states’ efforts to enforce these bans.

That’s because the victory for the trans girl, 12-year-old Becky Pepper-Jackson, is a temporary one for her while litigation plays out on the burgeoning issue. And the state’s litigation strategy might have played a part in its temporary loss. That is, when the district court issued a preliminary injunction in 2021 allowing Becky to continue on her middle school track team, state officials did not appeal it for the nearly 18 months it was in effect. The district court ultimately ruled against Becky before an appeals court issued its own injunction, which the state appealed to the Supreme Court.

Still, Republican-appointed Justices Samuel Alito and Clarence Thomas — the latter of whom is facing a fresh ethics controversy — dissented from the temporary measure allowing Becky to continue competing. Alito’s dissent for the duo could presage battles that culminate in a wider-ranging pronouncement about the legality of these bans. West Virginia is one of 20 states with transgender student-athlete bans, according to NBC News. Similar lawsuits are pending in Idaho and Tennessee, the American Civil Liberties Union, which represented Becky with Lambda Legal, noted in a statement Thursday.

West Virginia’s application to the justices, Alito wrote, “concerns an important issue that this Court is likely to be required to address in the near future.” That important issue, as he put it, is whether federal law and the Constitution’s equal protection clause can stop states “from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.”

Alito acknowledged the state’s litigation delay but turned his scorn on the appeals court below for enjoining the law without explanation — which is a bit rich coming from Alito, given the manner in which his GOP majority has wielded the shadow docket with little or no explanation in a host of significant cases.

At any rate, despite Becky’s lopsided victory Thursday, it is possible that more Republican appointees are sympathetic to Alito and Thomas’ position but just did not think that this temporary order was the venue for joining them — and are instead waiting for a bigger ruling in the future to do so.