Justices Samuel Alito and Clarence Thomas dissented from the court’s decision to deny the state’s request that it lift the lower court injunction. In a brief opinion which Thomas joined, Alito said the issue at the center of the court fight is an important one that “this court is likely to be required to address in the near future, namely” whether Title IX or the 14th Amendment’s Equal Protection Clause prohibits “a state from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.”

At the center of the dispute is a state law known as the Save Women’s Sports Act, which was enacted in April 2021 and bars transgender public school students from playing on girls’ sports teams. The law permits students to play on athletics teams based on their biological sex and defines “male” and “female” by a student’s “reproductive biology and genetics at birth.”

[The lawsuit is currently proceeding in district court, so this is not a ruling on the merits. The plaintiff in this case is a 12-year-old biological male who has taken puberty blockers long enough to forestall adolescence. This leaves a TRO in place while the court hears the lawsuit and rules on the West Virginia law requiring participation in teams based on biological sex. — Ed]