The Supreme Court will soon offer Democrats a way around their transgender trap. Don’t expect them to take it.
The Supreme Court is expected to soon render a verdict on two state laws (Idaho in 2020 and West Virginia in 2021) banning biological boys from competing in girls’ sports. The laws came before the Supreme Court after two different federal appeals courts (9th Circuit and 4th Circuit) barred the states from enforcing their prohibitions for different reasons. The 9th Circuit said Idaho’s law violated the 14th Amendment’s equal protection clause because it intended “to categorically ban transgender women and girls from public school sports teams that correspond with their gender identity.” The 4th Circuit said West Virginia’s law violated Title IX, the “federal civil rights law that bars sex discrimination in educational programs and activities that receive federal funding.”
Of course, if the 9th and 4th Circuit decisions are allowed to stand, an end-around of many federal statutes is opened. If heretofore definitive traits, such as sex and race, can be circumvented by a person’s self-identification –rather than the objective standard prevailing at the time a statute was enacted – then many federal statutes would appear ripe for challenging.
The Supreme Court’s conservative majority is therefore widely expected to uphold the states’ laws, with the main question being how broad their ruling will be. However, there is also another question here: Will Democrats take the “out” that the Supreme Court is offering them from the losing transgender issue?
Democrats would only have to acknowledge the fact that the Supreme Court has ruled decisively against their transgender position and then move away from it – simply saying “There’s nothing we can do until we control the Supreme Court” and letting the issue die.
An escape from their transgender trap should be very appealing to Democrats politically.
Just a year ago, polling showed nearly 80% of Americans opposed the participation of biological males in female sports. Only 5% of Republicans and 10% of independents believed that biological males should be allowed to do so.
Just two years ago, the issue was widely seen as being a significant reason that Kamala Harris lost the presidential election. From different ends of the ideological spectrum, both the American Enterprise Institute and the Brookings Institution listed Democrats’ support for transgender issues near the top of their lists of reasons for Harris’ defeat. Said Democratic Rep. Tom Suozzi to the New York Times: “Democrats have to stop pandering to the far left. I don’t want to discriminate against anybody, but I don’t think biological boys should be playing in girls’ sports.” Echoed Rep. Seth Moulton: “Democrats spend way too much time trying not to offend anyone rather than being brutally honest about the challenges many Americans face. I have two little girls. I don’t want them getting run over on a playing field by a male or formerly male athlete, but as a Democrat, I’m supposed to be afraid to say that.”
Unsurprisingly, Democrats avoided the issue as much as possible in their successful 2025 gubernatorial races in Virginia and New Jersey. In both races, Democrats ran on the middle-of-the-road economic issue of affordability and away from cultural issues where they have been perceived to be extremist. After the victories, the Democratic Governors Association trumpeted, “‘Affordability, Affordability, Affordability’: Mikie Sherrill and Abigail Spanberger Ran and Won on the Economy.” They were all too happy to let the dog of cultural issues continue sleeping soundly.
As much political sense as it makes to take the “out” that Supreme Court is about to giftwrap to them, don’t expect Democrats to do it. Instead, they are likely to take the bait and fall into the transgender trap once more.
Earlier this month, Senate Democrats blocked on a party-line vote Sen. Tuberville’s amendment codifying President Trump’s executive order barring biological males from competing in female sports. Just two months earlier in a Senate hearing, Sen. Hawley grilled a Democratic witness who refused to answer whether men can get pregnant.
Why would Democrats choose to take the wrong end of an issue where almost 80% of Americans are against them? Democrats are trapped by extremist base: While Americans overwhelmingly oppose allowing males in female sports, those who do are overwhelmingly Democrats. Go back to that earlier 2025 poll and you discover that 31% of Democrats believe that biological males should be allowed to compete in women’s sports.
Even though 67% of Democrats do not believe this, the almost one-third of the party who do is a significant amount. So, Democrats must support an issue that alienates most Americans or they risk alienating a substantial part of their base. Just days after their remarks, both Rep. Suozzi and Rep. Moulton faced demands that they apologize.
The Supreme Court decision is likely to land before the midterms, creating another golden political opportunity for Republicans. With a Bloomberg-reported $1 billion campaign war chest, they are amply armed to take advantage of Democrats’ nationally unpopular stance. For Democrats, it’s the same transgender trap, and they are likely to fall into it all over again.
And no matter who offers a way around it, Democrats cannot take it.
