Updated on Jan. 13 at 7:45 p.m.
The Supreme Court on Tuesday seemed likely to uphold laws that prohibit transgender women and girls from competing on women’s and girls’ school sports teams. After nearly three-and-a-half hours of arguments in a pair of cases from Idaho and West Virginia, a majority of the justices appeared to agree with the states that the laws can remain in place, even if it was not clear how broadly their ruling might sweep.
The court’s three Democratic appointees appeared to recognize that the challengers faced an uphill battle. They seemed to devote much of their efforts to mitigating their losses – either by getting one case thrown out or by limiting the court’s decision to a narrow one.
Idaho adopted its law in 2020; West Virginia followed one year later. Lindsay Hecox, now 24 years old, went to federal court in Idaho to challenge that state’s law. Hecox is a transgender woman who wanted to be able to try out for the women’s track and cross-country teams at Boise State University; she did not make those teams but later played club sports.
The West Virginia case was filed by Heather Jackson, the mother of B.P.J., a now-15-year-old transgender high school student who has publicly identified as a girl since the third grade. B.P.J. has taken puberty blockers to prevent the onset of male puberty, as well as hormone therapy with estrogen. B.P.J. has competed on the track and cross-country teams at school.
A federal appeals court in San Francisco barred Idaho from enforcing its law. The U.S. Court of Appeals for the 9th Circuit agreed with Hecox that the law violates the 14th Amendment’s equal protection clause because it was intended “to categorically ban transgender women and girls from public school sports teams that correspond with their gender identity.” The law also discriminates on the basis of sex, the panel concluded, because athletes on girls’ and women’s teams – but not on boys’ and men’s teams – are subject “to invasive sex verification procedures to implement the law.”
The U.S. Court of Appeals for the 4th Circuit in Richmond issued an order that prohibited West Virginia from enforcing its law, but for a different reason. That court ruled that West Virginia’s law violates Title IX, a federal civil rights law that bars sex discrimination in educational programs and activities that receive federal funding, because it discriminates against B.P.J. on the basis of sex.
Idaho Solicitor General Alan Hurst told the justices that “Idaho’s law classifies on the basis of sex because sex is what matters in sports. It correlates strongly with countless athletic advantages, like size, muscle mass, bone mass, and heart and lung capacity.” The purpose of the state’s law, he said, is to preserve equal opportunities for women and girls in sports. “Denying special treatment isn’t classifying on the basis of transgender status,” Hurst continued. “It’s consciously choosing not to.” “All Hecox challenges,” Hurst emphasized, “is the law’s application to a tiny subset of males who identify as transgender and suppress their testosterone.”
Representing West Virginia, Michael Williams – that state’s solicitor general – echoed Hurst’s statements. “States have long assigned students to sports teams by sex,” he observed. The West Virginia law, Williams insisted, was intended to ensure that women and girls “can safely and fairly compete in school sports.”
But Kathleen Hartnett and Joshua Block, who argued on behalf of Hecox and B.P.J., respectively, countered that Title IX and the 14th Amendment are intended to protect everyone. And if transgender athletes like B.P.J. and Hecox do not have the biological advantages that the laws target in the name of fairness, they said, there is no reason why their clients cannot play on sports teams that match their gender identity. Moreover, Block added, “unlike the case of a cisgender boy, excluding B.P.J. from the girls’ teams excludes her from all athletic opportunity while stigmatizing and separating her from her peers.”
The court’s Democratic appointees appeared to agree. Justice Ketanji Brown Jackson, for example, asked Hurst about “someone who is transgender but who does not have, because of the medical interventions and the things that have been done, who does not have the same threat to physical competition and safety and all of the reasons that the state puts forward.” Why shouldn’t that person, Jackson suggested, be able to bring a challenge to the law as it applies to her?
Hashim Mooppan, representing the Trump administration, countered that the state was only required to show that there is a substantial relationship or a “reasonable fit” between its goal of ensuring fairness in women’s sports and its exclusion of transgender athletes. A “perfect fit” is not required, he stressed. The Supreme Court has made clear, Mooppan said, that “if the law is substantially related in general,” individual challengers cannot argue that the relationship is lacking in their particular cases.
“But here, critically,” Mooppan contended, “everyone agrees that for sports, for 99 percent of men, it’s reasonably tailored. It’s just the 1 percent of trans-identifying individuals who take drugs and then those drugs are effective that’s a problem. And this Court’s” cases “make[] clear that that’s not a viable as-applied claim.”
Chief Justice John Roberts was also skeptical of the challengers’ arguments, asking Hartnett to address “whether or not we should view your position as a challenge to the distinction between boys and girls on the basis of sex or whether or not you are perfectly comfortable with the distinction between boys and girls, [and] you just want an exception to the biological definition of girls.” And if the court were to adopt such an exception, Roberts suggested, “that would have to apply across the board and not simply to the area of athletics.”
Justice Neil Gorsuch, who in 2020 wrote for the majority in Bostock v. Clayton County, holding that federal employment discrimination laws protect LGBTQ employees, initially appeared to voice some support for the challengers. He pushed back against the states’ argument that transgender people are not a “suspect” class – that is, people who have historically been subject to discrimination (which would require any discrimination against them to be subject to heightened scrutiny).
But Gorsuch later appeared at least sympathetic to West Virginia’s suggestion that Title IX should not be read to prohibit laws like the ones at the center of this case because it (along with regulations issued pursuant to it) distinguishes between men’s and women’s sports teams. Title IX was enacted under the Constitution’s spending clause – which requires Congress to clearly indicate when it intends states to be bound by accepting funds. “I would have thought,” Gorsuch told Williams, “that this is Spending Clause legislation in Title IX, and Congress has to speak with a particularly clear voice, and whatever it said here” – about the obligations that the state was assuming by accepting federal funding “isn’t clear enough.” Gorsuch suggested that, at least in this context, Title IX would not pass muster under the Constitution’s spending clause because when the law was enacted in 1972 states would have understood the term “sex” to refer to “biological sex.”
Several of the court’s other conservative justices also appeared to side with the states. Justice Brett Kavanaugh suggested (among other things) that the Supreme Court should stay out of the debate right now given the “scientific uncertainty” and the “strong assertions of equality interest on both sides.” “[G]iven that half the states are allowing it, allowing transgender girls and women to participate,” Kavanaugh posited, “why would we at this point … jump in and try to constitutionalize a rule for the whole country?”
Kavanaugh also observed that other states allow transgender women and girls to play girls’ and women’s sports. Although Hurst had conceded that such a policy did not violate the Constitution, Mooppan acknowledged that the Trump administration had been challenging those states’ laws in federal courts. Mooppan “urge[d]” the justices “to make clear it’s not resolving that question one way or the other” with its ruling on the Idaho and West Virginia laws.
Justice Amy Coney Barrett asked Hartnett “how would we say this discriminates on the basis of transgender status when” “trans boys can play on boys’ teams,” so that the effect of the law “really only runs towards trans girls?”
Justice Clarence Thomas also voiced skepticism about the challengers’ position. He described a scenario in which a “lousy” male tennis player did not make the men’s tennis team “and wants to try out for the women’s tennis team.” “How,” Thomas asked Hurst, “is that different from” being required to allow transgender women on the women’s tennis team?
Hurst responded that Thomas’ scenario was “not at all different … and that’s exactly what we’re concerned about.” The challengers’ efforts to carve out exceptions from the classifications “for people for whom that classification doesn’t make sense … don’t limit themselves to people who identify as transgender.” Mooppan offered what he characterized as a straightforward way to resolve B.P.J.’s case. Regulations issued under Title IX regarding equality in sports, he said, ”expressly authorize sex-separated teams,” which the litigants agree means “biological sex.” Therefore, he contended, whether the challengers are correct that puberty blockers and hormone therapy eliminate any advantages that transgender athletes might otherwise have is irrelevant.
The court spent relatively little time on Hecox’s request to dismiss the case as moot – that is, no longer a live controversy. Hecox had sought to end the case in the lower court, arguing that she hoped to graduate soon, that she did not intend to try to play sports in Idaho again, and that she disliked the negative public attention that she had received as a result of the case. Justice Sonia Sotomayor, perhaps as part of an effort to minimize the effect of the court’s ruling, showed interest in Hecox’s request, but overall, the question received relatively little attention.
