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.
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 school athletes throughout the country. The factual question of whether a particular wrestler committed a crime is separate from the legal question of whether federal law strips states of their authority over trans participation in women’s sports. And this legal question deserves more deliberation than the Court can give it if it decides this case on the shadow docket.
So what are the actual legal issues in K.M.K.?
In West Virginia v. B.P.J. (2026), the Supreme Court warned that judges should not be given the power to decide which athletes may compete on a women’s sports team. “The legislatures and the schools are better equipped — and under the Constitution, are the more appropriate entities,” Justice Brett Kavanaugh wrote for his Court, “to assess the competing medical and scientific considerations and draw appropriate lines.”
B.P.J., of course, was a loss for transgender rights. The Court rejected a constitutional challenge to state laws that forbid trans women from playing on school sports teams within that state. But the legal question in B.P.J. was whether laws barring trans women from women’s sports are allowed — a question that the Court’s Republican majority answered in the affirmative. A victory for the plaintiffs in K.M.K., by contrast, would likely establish that no state may permit trans women to compete on women’s sports teams, regardless of what the people of that state want.
This Court is often skeptical of claims by trans rights advocates, and it almost always resolves disputes between cultural liberals and religious conservatives in favor of the religious right. That said, this Court has thus far respected states’ rights on another contentious issue that is a high priority for the religious right: abortion. Although the Court’s Republican majority overruled Roe v. Wade and eliminated the constitutional right to an abortion, it has rejected some attempts to restrict abortion in blue states — including by repeatedly ruling against litigants who seek to ban the abortion medication mifepristone.
So it is, at least, possible that this Court will follow a similar path in K.M.K. and conclude that the question of which team trans women should play on should be answered by the states and not the Supreme Court.
Broadly speaking, ADF raises two legal arguments against Washington state’s policy allowing trans women to play on women’s sports teams. It claims that Title IX, a federal law that bars “sex” discrimination by most schools, implicitly requires those schools to have sports teams that only cisgender women may play on. It also claims that the Court’s recent decision in Mirabelli v. Bonta (2026), which requires public schools to out trans students to their parents even if the students wish to keep their gender identity secret, also requires those schools to exclude trans women from women’s sports.
There’s no reason for the Supreme Court to decide either of these questions now, however. As Chief Justice John Roberts wrote in Lux v. Rodrigues (2010), when a party that lost in the lower courts seeks an injunction from a Supreme Court justice before their case is fully litigated in those lower courts, they must demonstrate that “the legal rights at issue are ‘indisputably clear.’” This rule, like many old rules disfavoring shadow docket decisions, exists to prevent the justices from rushing into a decision that may later prove unwise.
There is no plausible argument that Title IX “indisputably” bars trans women from women’s sports. That’s because, just a few months ago in B.P.J., the Court held that it was not deciding the question of “whether, under Title IX and the Equal Protection Clause, schools may allow biological males who identify as female to participate on girls’ and women’s sports teams.” So that’s a recent Supreme Court precedent holding that the answer to this legal question remains open.
Mirabelli, meanwhile, is an unusually thinly reasoned decision. The Court’s Republican majority held that schools must out trans students because of a judicially created doctrine saying that parents have “primary authority with respect to ‘the upbringing and education of children.’” But the Court’s analysis of this issue was just a single paragraph long, it relied on the most malleable doctrine in all of US constitutional law, and it had nothing to say about sports.
Moreover, as the school district points out in its brief, the Court has never held that a parent’s right to direct the upbringing of their child includes a right to dictate which rules will be used by school sports teams. If such a right existed, a parent might insist that a school bar players of a particular race. Or they might demand that their child be allowed to play football without being tackled.
Competitive team sports simply cannot exist if one player’s mother is allowed to demand changes to the rules that neither the league nor the other players support.
In any event, at this stage in the litigation it should be enough for the Court to say that the unique right claimed by K.M.K.’s mother — the right to dictate which rules a multischool competitive sports league will use — is not “indisputably clear” under current law.
What should happen when the Court eventually decides whether blue states may allow trans women to play on women’s teams?
It is, to borrow from Lux, indisputably clear that the Court should not give the K.M.K. plaintiffs the sweeping policy change that they seek in a shadow docket ruling. But the justices cannot avoid, forever, the question of whether federal law forbids trans women from playing on women’s teams. So how should they resolve this question when it is more properly presented to them?
Let’s dispose of the plaintiffs’ Mirabelli argument first. While the Court has held that parents have some right to direct the education of their children, prior to Mirabelli, this right was construed narrowly. One older case held that states may not forbid parents from sending their children to private schools. Another held that the government may not bar teachers at these schools from teaching the German language.
Prior to the Court’s barely explained decision in Mirabelli, however, the Court had never held that parents may dictate how public schools operate, and the school district’s brief in K.M.K. cites several court decisions warning against giving parents too much authority over public schools. (The Court did hold, in Mahmoud v. Taylor (2025), that parents who object to a school’s curriculum on religious grounds may opt their children out of certain lessons. But the K.M.K. plaintiffs do not raise a religious objection.) As the Supreme Court said in Prince v. Massachusetts (1944), states may “restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.”
It’s clear from Mirabelli that the Court’s Republicans do not share this caution about judicial control over public schools. But, because Mirabelli was so thinly reasoned, it’s also impossible for outside observers to determine why these justices want an unprecedented amount of control over public schooling, or whether they have good reasons for asserting this new power.
I will simply reiterate the school district’s objection that, once the Supreme Court opens the door to parents dictating which rules will be used in school sporting competitions, the lawsuits will not end with parents seeking to kick trans women out of women’s sports. The next parent may object to their child wrestling Black people. Or they may demand that their child be given protective gear that gives them a competitive advantage. Some parents may also demand rules changes that conflict with changes demanded by other parents. And there is no principled way to distinguish these requests from a request to exclude trans women.
There are myriad problems, meanwhile, with the K.M.K. plaintiffs’ Title IX argument. That statute provides that schools that receive “Federal financial assistance” may not exclude individuals from “any education program” on “the basis of sex.” This statute has long been read to require equal treatment of men’s and women’s sports by schools that receive federal funds.
But, as the school district argues in its brief, Washington schools do not discriminate on the basis of “sex” — which the Court has defined to mean sex assigned at birth in this context. Instead, they classify athletes on the basis of gender identity. There is one team for all people who identify as male, whether trans or cis, and another team for all people who identify as female. Social conservatives may object to this arrangement, but it does not classify students based on their sex assigned at birth at all.
The K.M.K. plaintiffs’ argument is also undermined by federal regulations implementing Title IX. Those regulations provide that schools generally should not separate women and men in sports, but that they “may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” It is quite a stretch to read regulations saying that schools “may” have sex-segregated teams to say that schools must ensure that their teams are strictly sex segregated.
Finally, recall that Title IX only applies to schools that accept federal funding — schools have the option of rejecting Title IX’s requirements if they also forego federal grants. This matters because, as the Court recently held in Landor v. Louisiana Department of Corrections (2026), “Congress must clearly and unambiguously alert a grant recipient to any condition on federal funds.”
Thus, if there is any ambiguity about whether Title IX requires schools to exclude trans women from women’s sports, that ambiguity must be resolved against imposing any requirements on public schools. Title IX may only be read to ban trans women from women’s sports if it “clearly and unambiguously” does so.
Again, there’s no reason for the justices to resolve either of these questions because, at this early stage in the litigation, the Supreme Court should simply decline to decide K.M.K. because the plaintiffs’ legal rights are not “indisputably clear.” But this Court is often impatient, especially in cases involving culture war issues. Mirabelli was also a shadow docket case, but that didn’t stop the Court’s Republicans from inventing a new legal rule compelling teachers to out their trans students.
There’s a serious risk, in other words, that this Court will rush to decide K.M.K. before it fully considers the legal arguments on either side, or even learns whether the genuinely shocking allegations raised by the plaintiffs have merit.