Supreme Court Suggests Backing for Curbs on Trans Athletes (1)

The US Supreme Court signaled it’s likely to uphold state laws that ban transgender girls and women from competing for their schools on female athletic teams, tackling a fraught issue that has become a lightning rod across American society.

Hearing arguments in Washington for more than three hours Tuesday, the court’s conservative majority directed skeptical questions at lawyers for transgender athletes challenging Idaho and West Virginia laws as violating federal law and the Constitution.

Idaho and West Virginia are among 27 states with laws restricting transgender student-athletes, according to Movement Advancement Project, a nonprofit think tank that advocates for LGBTQ understanding. All have been enacted since 2020.

“Why would we at this point — just the role of this court — jump in and try to constitutionalize a rule for the whole country while there’s still, as you say, uncertainty and debate?” Justice Brett Kavanaugh asked a lawyer challenging the West Virginia measure.

The lawyer had just discussed the evolving nature of the science and understanding of the issue in response to another justice’s question.

Opponents contend the state bans violate the Constitution’s equal protection clause as well as a US law that bars sex-based discrimination in schools that receive federal funding.

A ruling favoring Idaho and West Virginia wouldn’t directly affect states that permit transgender girls and women to participate on female teams. President Donald Trump’s administration is suing some states over those policies, but that issue isn’t before the Supreme Court.

The administration is urging the court to back the restrictive state laws. Justice Department lawyer Hashim Mooppan told the justices that “denying a special accommodation to trans-identifying individuals does not discriminate on the basis of sex or gender identity or deny equal protection.”

Trump has repeatedly raised the specter of transgender athletes overwhelming their female competitors.

The Supreme Court has repeatedly ruled against transgender rights in recent years. The court last year said states can ban transgender children from receiving certain medical treatments, including puberty blockers and hormone therapy.

West Virginia is fighting a lawsuit by Becky Pepper-Jackson, a 15-year-old girl who has competed on her middle and high school track teams since a judge blocked the measure from being enforced against her. As a high school freshman in May, she finished third in shot put and eighth in discus at the state championship meet.

The law “excludes her from all athletic opportunity, while stigmatizing and separating her from her peers,” her lawyer, Joshua Block of the American Civil Liberties Union, argued in court.

LGBTQ advocates haven’t had a major Supreme Court win since 2020, when the court ruled 6-3 that the main federal job-bias law, known as Title VII, bars discrimination against sexual orientation and gender identity. Title VII bars discrimination “because of” a person’s sex, and the court says that phrase encompasses differential treatment based on sexual orientation or transgender status.

The two conservatives who were part of that majority — Chief Justice John Roberts and Justice Neil Gorsuch — both suggested Tuesday that the same reasoning might not apply to Title IX, a separate US law affecting schools that receive federal funding.

Gorsuch said that under a 1974 amendment to the law, “sports are different.”

Lawyers for Becky and her mother, Heather Jackson, say no reliable scientific evidence indicates that transgender girls like her have an innate athletic advantage over cisgender girls. Because she received puberty blockers, Becky has never had the elevated testosterone levels that cisgender boys experience starting in puberty. She has since begun receiving estrogen therapy. Becky has publicly identified as a girl since third grade.

West Virginia officials say Becky has defeated hundreds of girls in shot put and discus. The state says a ruling in her favor would upend Title IX, which was designed in part to ensure that boys’ and girls’ sports teams receive equal support.

It’s not clear how many transgender athletes compete in organized sports. Advocates of bans say they have a growing list of transgender girls and women overwhelming their female competitors. But transgender-rights advocates say the number is a tiny fraction of the overall number of athletes.

Idaho’s 2020 law was the first of its kind. In addition to barring transgender women and girls from participating on all-female teams starting in grade school, the measure lets female athletes dispute the sex of a competitor and requires that person to undergo a medical exam.

A federal appeals court said the law couldn’t be enforced against Lindsay Hecox, a college senior and transgender woman who at the time participated in club-level running and soccer at Boise State University.

In September, Hecox told the Supreme Court that she wanted to drop the case and was no longer participating in sports at Boise State as she approaches graduation. Idaho officials are urging the Supreme Court to rule in the case anyway and use it to set a nationwide precedent.

The court will rule by July in the cases, Little v. Hecox, 24-38, and West Virginia v. B.P.J., 24-43.

(Describes impact on other states in sixth paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Steve Stroth

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