The context you need, when you need it

When news breaks, you need to understand what actually matters — and what to do about it. At Vox, our mission to help you make sense of the world has never been more vital. But we can’t do it on our own.

We rely on readers like you to fund our journalism. Will you support our work and become a Vox Member today?

The Supreme Court is about to decide whether to ban trans women from women’s sports

The case highlights everything that’s wrong with the Supreme Court’s shadow docket.

One of the last decade’s most consequential changes to how the Supreme Court operates is the growth of the so-called shadow docket — a process that allows the justices to decide cases unusually quickly, and often without full briefing or oral argument.

Historically, the Court would typically allow contentious legal issues to percolate in the lower courts for months or even years before the justices agreed to decide one of those issues. Then they’d spend months reading briefs, hearing arguments, and debating the case amongst themselves before they finally issued an opinion. This slow process existed because the Supreme Court is the final word on many legal questions — the Court can even override Congress if it claims a law is unconstitutional — and so it should be cautious before it hands down a decision that cannot easily be displaced.

Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.

A new case, which recently arrived on the Court’s shadow docket, embodies all the reasons why America’s highest Court should act carefully and slowly. K.M.K. v. Washington Interscholastic Activities Association involves a highly contentious issue — the plaintiffs in the case effectively want the Supreme Court to bar transgender women from women’s sports teams at high schools and universities, even in states that support trans inclusion in sports.

It also involves an appalling sexual assault allegation. One of the plaintiffs in the case is a high school women’s team wrestler who is identified only by her initials because she is a minor. She claims that one of her wrestling opponents, who is transgender, “forcefully” penetrated the plaintiff’s vagina with her fingers during a match.

As a memo from the local prosecutor’s office points out, if these allegations are true then K.M.K. is the victim of a very serious crime — rape in the third degree. The prosecutor’s office, however, decided not to prosecute because it concluded that it could not prove that a sex crime was committed beyond a reasonable doubt. Among other things, prosecutors spoke to the referee who officiated the match, and he said that “nothing stood out to him during the match” and that “after watching the video of the match, he could not say that the suspect’s hand placement was ‘anything out of the ordinary.’”

The school district, meanwhile, says that it has reviewed video of the match, interviewed both competitors, and that its investigation into the allegation is “still ongoing.”

K.M.K., in other words, is exactly the sort of case that the justices should step away from, sending it back down to the lower courts to gather more information and to fully think through the difficult legal issues presented by the case. Setting aside the horrifying allegations against her one-time opponent, K.M.K.’s lawyers — most of whom work for a Christian right law firm, the Alliance Defending Freedom (ADF) — make novel legal arguments that ask the Court to make broad pronouncements that go far beyond its previous precedents.

One of their arguments, if taken seriously by the justices, could potentially make it impossible for any school athletes, whether cis or trans, to participate in competitive sports of any kind.

There is a very real risk, in other words, that the Supreme Court will, if it moves too quickly in this case, harm millions of........

© Vox