Justices Reenter Transgender Rights Debate With Student Athletes

The US Supreme Court will hear two challenges to state laws restricting transgender participation in youth sports, marking the justices’ first return to transgender rights since last year’s decision in United States v. Skrmetti.

The court in Skrmetti upheld a Tennessee ban on gender-affirming care for minors, but declined to answer whether transgender individuals constitute a quasi-suspect class deserving of higher judicial scrutiny.

The youth sports cases could give the court’s conservative majority an opportunity to answer that question and grant states wider discretion in imposing transgender-related regulations.

At issue in the cases being argued Tuesday is whether states may categorically bar transgender girls from competing on girls’ sports teams based on biological sex — and whether such policies should be reviewed deferentially, as the court held in Skrmetti, or subjected to heightened judicial review.

“What’s happening in Skrmetti, and what might happen here, is just saying, no, this isn’t sex discrimination at all even if the government is using sex,” said Yale Law School professor Douglas NeJaime. “And that is a real narrowing of decades of sex equality law.”

Skrmetti represented a setback for transgender rights, five years after the landmark victory in Bostock v. Clayton County for nationwide workplace protections for LGBTQ+ individuals under Title VII of the Civil Rights Act of 1964.

Prior to Skrmetti, lower courts had been able to interpret Bostock broadly, Nejaime said. But last year’s decision limited Bostock’s reach, and the cases now before the court could result in further retrenchment on sex discrimination issues by the court.

“I hope that the court will see the stakes are really about sex equality,” said Kate Redburn, professor and director of Columbia Law School’s Center for Gender and Sexuality Law.

Joshua Block, senior counsel with the ACLU’s LGBTQ & HIV Project who will argue on behalf of one of the transgender respondents, acknowledged the loss in Skrmetti made the job of defending transgender rights harder.

“Look, we’re not hiding the ball in acknowledging that we have an uphill battle here,” Block said.

But, he said, critics misunderstood why that case got to the high court in the first place.

“There is, I think, this false narrative that people only defending the rights of trans folks have been trying to propel the issue both in the courts and in the court of public opinion, and I think the opposite is true,” Block said. “Why were these laws passed in the first place? They were passed to roll back the rights of transgender people. And I think it’s been a wildly successful strategy.”

Wider Stakes

Block said it was a “surprise” the justices moved so quickly to take up the transgender girls sports cases just weeks after resolving Skrmetti on narrow grounds.

“Five of the justices in Skrmetti were unwilling to sign on to a broader decision,” Block said. “I think the question is, are they going to take the same approach here or not?”

NeJaime said there’s reason to think the court might not.

“You had three justices on the record in Skrmetti saying no suspect class for trans people,” he said. “You might have some justices like Chief Justice Roberts or Justice Kavanaugh that maybe aren’t ready to completely go there.”

Redburn said the conservative justices seemed eager for a second shot at the constitutional questions they dodged in Skrmetti. But, Redburn said, even a narrow ruling could encourage legislatures to justify discriminatory laws as grounded in biology rather than stereotypes.

“The fear here is that the court is going to authorize states to legislate in discriminatory ways against trans people, but also against women in general, based on biological differences,” Redburn said.

The cases being argued Tuesday arise from challenges to laws in West Virginia and Idaho. In West Virginia, the Fourth Circuit ruled the state’s “Save Women’s Sports Act” likely violates Title IX’s ban on sex discrimination. In Idaho, the Ninth Circuit blocked enforcement of the nation’s first categorical ban on transgender women and girls in female sports, a law that also allows sex-verification challenges.

The Trump administration has urged the court to side with West Virginia and Idaho, as has the conservative legal group Alliance Defending Freedom, which is assisting the states.

John Bursch, senior counsel and vice president of appellate advocacy at ADF, said the ACLU’s attempt to moot the Idaho case shows they fear the majority may take a broader approach than it did in Skrmetti.

“Just based on their briefing, I expect the primary approach will be duck-and-cover,” Bursch said.

The cases fit within a wider slate of litigation in which ADF has argued for expanded state authority and limits on the reach of transgender rights, including in disputes involving religious employers and parental objections.

Bursch said the court’s June decision signals growing judicial support for those arguments.

“I think the Skrmetti case really puts a lot of wind in our sails,” Bursch said.

West Virginia Attorney General JB McCuskey said victory would be a holding that the legislature acted constitutionally — a decision, he said, that would allow other states to pass similar legislation modeled on West Virginia’s. The state’s arguments don’t seek to move any of the court’s analyses “beyond the athletic playing fields of this country,” he said.

A decision upholding the laws would immediately be felt in the more than two dozen states that already restrict transgender participation in youth sports. But it could also encourage the Trump administration to pursue litigation against other, largely Democrat-led states in an attempt to enforce the president’s February executive order on restricting transgender participation in women’s sports, according to Tres Cleveland, co-chair of the higher education practice group at Thompson Coburn.

“Other than immigration enforcement, this issue is the cornerstone of what the president ran on,” Cleveland said. “What he will do with this decision and how far the administration will go in feeling vindicated is yet to be seen.”

The cases are Little v. Hecox, U.S., No. 24-38 and West Virginia v. B.P.J., U.S., No. 24-43, set for argument on 1/13/26.