When the great scholar W.E.B. Du Bois wrote about the “wage” ordinary white people received for holding up the edifice of racial hierarchy, he meant it as both real and almost unbelievably paltry. Working- and middle-class whites didn’t get much economically from their lack of solidarity with Black people who were similarly being robbed by the rich—not when compared with what they might have gotten by banding together across racial lines to form a fighting majority. But they received a “public and psychological wage” that had real-world effects.
On Tuesday, June 30, the last day of the Supreme Court’s tragic 2025-2026 session, the far-right supermajority doled out similar wages to cisgender people, especially to cisgender women. It did this by repeatedly invoking youth sports as a “zero-sum” arena. According to the majority opinion by Justice Brett Kavanaugh, the principles to be defended in our constitutional order, and our school sports, are not equality, social inclusion, or community adherence. The relevant principles are “safety” for sports-playing girls, whom he figures as needing patriarchal protection and something called “competitive fairness.”
In this light, every gain for trans women is an intolerable loss for cisgender women. Don’t change the system, bake a bigger pie, or share access or resources, he suggests. Just make sure my girls get theirs.
Kavanaugh makes little mention of inconvenient facts from the two cases before the Court, West Virginia v. B.P.J. and Little v. Hecox. In the former, a single West Virginia student raised objection to her state’s proscription against trans women’s participation in school sports when she was 11 years old, and is just 15 now. Hecox, the college student from Idaho whose case the Court decided with B.P.J. (despite her legal team’s request to moot the case, which the Court did not allow) did not make it onto a varsity team and only wanted to play on a couple of club teams. We’re not talking here about million-dollar contracts with the WNBA. We’re not even talking about a scholarship to Boise State, Ms. Hecox’s university, or about the glory of performing under those Friday Night Lights.
One might think it was socially beneficent, as well as constitutionally important, to let students who are bullied or marginalized on the basis of their sex and gender, or on any other basis, develop their physical capacities and be part of the fold by participating in athletic activities at school. However, to think of sports in this way, for Kavanaugh, is to commit a category error. Sports, he suggests, are supposed to leave people out and make most students sad. He writes a paean to every obsessive girl on a school team, who pushes herself relentlessly to “get a little faster, to become a little stronger, to jump a little higher, to shoot a little better, to watch a little more video, to make the lonely journey back from an ACL tear, to scrap for playing time.”
Sports, Justice Kavanaugh suggests, are supposed to leave people out and make most students sad.
I never knew that girl, since organized sports were the furthest thing from my mind during my school years. But I have met her parents, and the idea of them lurks in the opinion by Kavanaugh, himself a renowned former coach of high school girls’ basketball. These parents encourage their children’s relentless and possibly self-damaging efforts. They sacrifice themselves to the modern god of the away game, paying for endless summer intensives and high-end equipment. Generally speaking, the varsity sports world in overwhelmingly white suburbs like the one in which I live is not about fighting for children’s opportunity to be assessed neutrally on the basis of their discipline and physical prowess. It’s about winning, no matter what.
Kavanaugh and the Supreme Court majority hold that state governments are free to discriminate against transgender girls and young women, barring them from participation in organized sports apparently at any age, on teams that correspond with their gender identities. The equal protection clause in Section 1 of the Constitution’s 14th Amendment doesn’t forbid this kind of discrimination, Kavanaugh writes, because sex- or gender-based guarantees under equal protection have always made room for discrimination based on genuine differences between the sexes. Although unproven in the record of this case, the differences in athletic ability between those designated female at birth and those designated male are, he asserts, “enduring.” (The word is borrowed, knowingly, from Ruth Bader Ginsburg’s landmark ruling in the Virginia Military Institute desegregation case, which of course made the case for inclusion despite “enduring” biologically based differences, and not, as here, for exclusion.)
Title IX, the section of the national Education Act that Reps. Patsy Takemoto Mink and Edith Green wrote to end sex-based hierarchy in all educational institutions, doesn’t help either, Kavanaugh says.
The Democratic appointees, represented by Justice Sotomayor, dissent on the equal protection question. The 14th Amendment’s promise of equality before the law, Sotomayor writes, “demands much more” in the way of factual justification “when a State deploys a sex classification to achieve legislative aims. Perhaps West Virginia could meet those demands,” she continues. But the majority’s decision, “unencumbered by fact or law,” doesn’t even try to meet the necessary standard. She and Justice Kagan “agree with the majority” that Title IX does not apply. That law’s purpose was to solve the problem of sex discrimination in education. Its authors understood sex as binary when they wrote the statute and its implementing regulations. However, Justice Ketanji Brown Jackson writes separately (as I read it, exhaustedly, re-emerging into daylight after the long nightmare of her fourth year on the Supreme Court bench) to suggest that the discriminatory state laws at issue “might well run afoul of Title IX properly construed.”
The theme of virtually all the big cases this year could be summarized as “zero sum.” Kavanaugh’s opinion for the Court asserts a supposedly natural hierarchy of men over women, and builds upon that a social and educational hierarchy of cisgender over transgender young people. This sits alongside the Court’s invitation to states to recreate the political conditions that made the Voting Rights Act of 1965 necessary, in the case Louisiana v. Callais: Here, the Court greenlit the reimposition of racial hierarchy throughout the political system by redefining claims of racial discrimination in electoral maps as attempts at political advantage, and saying that seeking political advantage through gerrymandering is fine. Politics will either favor white people and Republicans or nonwhite people and Democrats; SCOTUS chooses white Republicans.
The transgender sports cases sit alongside Mullin v. Doe, in which the six-member majority allowed the president to withdraw Temporary Protected Status from Haitian immigrants while avoiding the overtly racist assertions of the president and the racial, nativist, and eugenic hierarchies his administration seems hell-bent on affirming. Citizenship, too, is a zero-sum game: Either the white South Africans fleeing Black-majority rule get it, or the Haitians fleeing natural and economic disaster get it. SCOTUS is fine with the administration choosing those it considers its people.
Kavanaugh’s opinion also arrived on the same day as the one about money in politics, National Republican Senatorial Committee v. Federal Election Commission. In that case, the Court burned up the last meaningful safeguard against millionaire and billionaire influence in elections, by ruling the bar on coordination between special political committees and candidates to be unlawful. It’s a zero-sum game, you know: The billionaires who built their fortunes on public goods like the internet and on lucrative public contracts have won that game. They get the spoils, including the right to express their political preferences by giving unlimited sums to the candidates of their choosing.
The story the Court tells about girls and sports is the same one that Republican campaigns up and down the ticket told, to their benefit, in 2024. Why does it work so well, as compared to other attempts to build a majoritarian Republican coalition by punching down at others? How has the Supreme Court managed to eviscerate the promise of gender-based equal citizenship by talking about two student-athletes out of millions?
At the risk of currying favor with an American Prospect audience, and taking nothing away from transphobia and sexism as distinctive problems, I think a big part of this is The Capitalism. High-stakes sports provide almost too perfect a metaphor for our economic moment. They aptly reflect the anxieties of the contemporary U.S. upper middle classes. No, the majority of my neighbors and Kavanaugh’s do not want their kids to have a fair chance in what they understand as a brutal, zero-sum game of success. They want their kids to win. Even before the threats A.I. posed to the continuance of the American middle class, upscale parenting had become pretty nutty, and nowhere more so than in the stadium or on the ball field.
Kavanaugh knows this world well. He insists that there is no room on a girls’ team for someone who might have an advantage because of childhood experiences of maleness. “Every athlete,” he writes, “who makes a team takes a roster spot from another athlete. Every player who earns playing time reduces the playing time of a teammate. Every player who makes the starting lineup sidelines another who remains on the bench. Every competitor who wins a race or competition deprives another athlete of that victory, or medal, or prize.” In other words: If you get a little, I and mine must lose.
He extends the anxiety to the group level, by implication or analogy perhaps to the nation, weakened by its post-1960s attempts to grant more people a place in the mainstream. “Every team that wins because of an added player means that another team has lost because of that added player,” he adds. “Every player who makes all-conference beats out another player who does not. Every student who earns an athletic scholarship takes that opportunity away from another student. And so on.”
A little New Deal–inspired respect for the common weal would go a long way right about now. We can make a better world for our children, and for our neighbors’ children and the children of people who look and speak differently from us. It is really possible to beat the jerks who are telling us that concentrated wealth is a natural consequence of intelligence, and that human redundancy is inevitable. We can challenge the ones who say that kids have to tear their ACLs and get right back in the game, to prove that they deserve more than scraps at the table. We can make a bigger team, sponsor more club sports, even defund varsity sports and create athletic opportunities for everybody, the way Spelman College’s president did in 2013.
We can learn about one another’s different experiences of sex and gender, sports and embodiment. We don’t have to treat discriminatory public policy like science, when it claims transgender and nonbinary identification doesn’t really exist. And we don’t have to treat science, or, for that matter, the ideal of equal citizenship, like a leftover hippie inheritance that has to be laughed off the stage.
The transgender sports cases from the Supreme Court build a legal McMansion in service of both gendered and sex-based inequality. They emanate from an anguished white upper middle class that can’t see past its own hypercompetitive and self-regarding present. It doesn’t have to be this way.
