Gorsuch Stands Out From Conservative Bloc in Trans Athlete Fight

Justice Neil Gorsuch set himself apart from the conservative bloc as the Supreme Court heard arguments on state laws barring female transgender athletes from participating in student athletics.

Gorsuch, who authored the court’s 2020 decision shielding gay and transgender people from discrimination in the workplace, wrestled during oral arguments on Tuesday with whether the trans population qualifies as a discrete, quasi-suspect class triggering heightened judicial scrutiny of laws impacting them.

His questions left open the possibility that Gorsuch could again vote in favor of granting legal protections to transgender persons, based in part on the history of discrimination against transgender people in the US.

But on a 6-3 conservative court, it may not matter. In the court’s most recent term, Gorsuch voted with the other five conservative justices in US v Skrmetti in upholding a Tennessee ban on gender-affirming care for minors and declaring that the law didn’t classify on the basis of sex.

By the end of more than three hours of argument, it appeared the majority of the court was leaning toward siding with 27 states that have passed laws preventing transgender athletes from participating on their schools’ female sports teams.

“Of the conservative justices, Justice Gorsuch was certainly the most receptive to the respondents’ arguments,” said Cornell Law School professor Michael Dorf. “It was a real contrast to Skrmetti where he asked no questions and joined the majority opinion.”

While it’s unclear what that means about where Gorsuch lands, Dorf said, it suggests he wants to “make sure this isn’t a complete pullback from” the court’s 2020 decision on gay and transgender workers.

A decision in the case is expected by July.

‘Discrete Class’

Tuesday’s arguments revolved around challenges to laws in Idaho and West Virginia under the Fourteenth Amendment’s Equal Protection Clause. The court also considered whether West Virginia’s statute violated Title IX, the 1970s civil rights law that barred discrimination on the basis of sex in education programs that receive federal funding.

But Gorsuch, who was appointed to the bench in 2017 by President Donald Trump, signaled he thought some of that discussion veered away from a core issue.

“One might wonder whether the efforts to refashion equal protection jurisprudence that you have been discussing at length on sex discrimination is really a fallback from what might be, what one might wonder would have been your primary argument,” Gorsuch told a lawyer for a student who challenged Idaho’s law. “Which is that transgender status is itself a discrete class.”

On multiple occasions, he raised the history of discrimination against transgender people, citing challengers’ points on the harms they faced in the context of immigration and family law, as well as prohibitions on cross-dressing.

Idaho Solicitor General Alan Hurst acknowledged the history of discrimination. But he said it didn’t compare to the type faced by Black Americans and women, who had “express classifications based on their status written into the law for most of this country’s history.”

Gorsuch shot back: “There’s two things in that answer that are kind of at odds.”

“You start by saying you don’t question there’s a history of discrimination,” he said. “And then you say, well, but they don’t classify on that basis? How should we think about that?”

Three of Gorsuch’s conservative colleagues have already provided their answers to that question.

Concurring with the court’s 6-3 decision in June in Skrmetti, Justice Amy Coney Barrett wrote the transgender population isn’t large enough of a discrete group to warrant extra scrutiny of laws distinguishing them.

“Holding that transgender people constitute a suspect class would require courts to oversee all manner of policy choices normally committed to legislative discretion,” Barrett wrote.

Justice Clarence Thomas joined Barrett’s concurrence. In his own, separate concurrence, Justice Samuel Alito said transgender status is not “immutable” and was not comparable to race or sex in how it had historically been treated by the law.

“Although transgender persons have undoubtedly experienced discrimination, the plaintiffs and their many amici have not been able to show a history of widespread and conspicuous discrimination that is similar to that experience by racial minorities or women,” Alito wrote, in a point Idaho’s lawyer seized on during Tuesday’s arguments.

Title IX

The court, which hasn’t established a new suspect classification in decades, seemed unlikely to raise the bar for scrutinizing laws targeting transgender individuals with its decision in the youth sports cases.

More possible, however, would be a holding narrowing the definition of sex in Title IX to biological sex. That’s an outcome the ACLU’s Josh Block attempted to forestall, telling Gorsuch the court could simply treat that as the definition for the case before it and leave a decision for another day.

Chief Justice John Roberts pressed Block on whether that approach was really tenable.

“I’m sorry, you don’t think we should have an operating definition of sex in Title IX?” Roberts asked.

Such a holding would likely invite further litigation—something Justice Brett Kavanaugh questioned each attorney about Tuesday. The Justice Department has already filed lawsuits against California and Maine alleging policies allowing transgender youths to participate on sports teams aligning with their gender identities violate federal sex-discrimination law.

“If we say sex is biological sex and we get to the next case, the California case or whatever, how would California prevail?” Kavanaugh asked.

Gorsuch and Roberts joined the court’s liberal bloc in 2020 in holding that Title VII of the 1964 Civil Rights Act protectedthe LGBTQ+ population from employment discrimination. Since that decision in Bostock v. Clayton County, the court has tilted further right with the addition of Barrett, who replaced the late liberal Justice Ruth Bader Ginsburg.

The cases are Little v. Hecox, U.S., 24-38, 1/13/26 and West Virginia v. B.P.J., U.S., 24-43, 1/13/26.