Once again, several leading news outlets have misrepresented an action of the Supreme Court. For example, The Hill’s headline declaring that the Supreme Court has ruled that “West Virginia transgender athletes can compete on female sports teams” is in error. So, too, are headlines in the New York Times (“Supreme Court Rules for Transgender Girl in School Sports Dispute”), NBC News (“Supreme Court rejects West Virginia bid to enforce sports ban against transgender girl”), NPR (“Supreme Court won’t enforce West Virginia law banning trans athletes from girls’ teams”) and USA Today (“Supreme Court sides with 12-year-old transgender girl fighting West Virginia’s sports ban”).
Reporting that the court has ruled on the merits when it has either declined to hear a case or has ruled on a procedural question is a mistake often repeated in reporting. It is a serious mistake because it misinforms the public about what has actually been decided and thereby affects the public perception of the Supreme Court.
In West Virginia v. B.P.J., the Supreme Court denied an application to vacate an injunction reinstated by the 4th U.S. Circuit Court of Appeals. The court’s one-sentence ruling has nothing to do with the merits of the case. The court ruled only that there was no emergency that would justify the court’s intervention in consideration of the merits by the appellate court.
The plaintiff in the case asserts that a West Virginia law prohibiting transgender women from participating on female sports teams in public middle schools, high schools and universities violates Title IX and the equal protection clause of the 14th Amendment. The District Court initially enjoined enforcement of the law but later found it constitutional, concluding that it is “substantially related to the important government interest of providing equal athletic opportunities for females.”
The appellate court then reinstated the injunction pending consideration of the statutory and constitutional issues on the merits. Thus, neither the 4th Circuit nor the Supreme Court has ruled that “West Virginia transgender athletes can compete on female sports teams.”
It is true, pending the appellate court’s consideration of the merits, that the West Virginia law will not be enforced and the plaintiff is allowed to participate on female sports teams. But we will not know whether these headlines are correct until the 4th Circuit and the Supreme Court (assuming the Court of Appeals ruling is reviewed by the high court) rule on the merits of the plaintiff’s claim.
Unsurprisingly, the media err in reporting what the Supreme Court has done. It is far more interesting to proclaim the court has rendered a decision on the controversial questions of the day than to report that the court has declined to consider a question or, as in this case, has chosen to await the decision of a lower court before considering the issue. But it is irresponsible to report that the court has decided on a question that it has not considered.
Rather than deciding a controversial question as implied in the headlines above, the court has exercised the restraint often urged by people across the ideological spectrum. The court has chosen to await the decision of the Court of Appeals before addressing whether banning transgender women from female sports violates Title IX or the 14th Amendment. One of the advantages of our tri-level judicial system is that the Supreme Court can benefit from repeated consideration of complicated questions in the lower courts. In the West Virginia case, as in most cases, the court has chosen to await that benefit.
When and if the Supreme Court considers the legality of the West Virginia law, it may be possible that it will be upheld, thus precluding transgender women from participating in female sports. In that event, many in the public, having been previously informed that the court ruled in favor of transgender women athletes, will conclude that they have reason to question the court’s legitimacy as an objective enforcer of the Constitution and laws of the United States.