Supreme Court to Mull Bans on Trans Athletes on Female Teams (1)

The US Supreme Court agreed to decide whether states can ban transgender girls and women from competing for their schools on female athletic teams, heeding conservative calls to consider further curbing LGBTQ rights.

The move comes less than a month after the Supreme Court ruled that states can outlaw puberty blockers and hormone treatments for transgender children.

The justices will hear appeals from Idaho and West Virginia after separate federal appeals courts blocked the states from fully enforcing their bans. The high court will hear arguments and rule in the nine-month term that starts in October.

Twenty-seven states have laws or regulations restricting transgender student-athletes, according to Movement Advancement Project, a nonprofit think tank that advocates for LGBTQ understanding. All have been enacted since 2020.

President Donald Trump has repeatedly raised the specter of transgender athletes overwhelming their female competitors, helping make the issue a flashpoint in the nation’s culture wars. Conservative advocates, including coaches and athletes, bombarded the court with briefs urging it to take up the issue.

Estimates indicate that less than 1% of US adults identify as a gender different from the sex they were assigned at birth. In sports, the number is even smaller, with some estimates suggesting fewer than 100 transgender athletes compete in public school sports nationwide.

The clash will test contentions that 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.

West Virginia is seeking to fully enforce a 2021 law that restricts girls’ squads to people classified at birth as female based on their “reproductive biology and genetics.”

The state has tussled in court since 2021 with 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 Supreme Court in 2023 refused to intervene in the case, letting Becky continue to compete. Justices Samuel Alito and Clarence Thomas dissented.

Testosterone Levels

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, according to court documents.

Court papers refer to Becky only by her initials, but the American Civil Liberties Union, which represents her, says it has parental consent to use her full name. Becky has publicly identified as a girl since third grade.

“Like any other educational program, school athletic programs should be accessible for everyone regardless of their sex or transgender status,” Joshua Block, the lead lawyer for the family at the ACLU, said in an emailed statement. “Trans kids play sports for the same reasons their peers do — to learn perseverance, dedication, teamwork, and to simply have fun with their friends.”

West Virginia Attorney General JB McCuskey hailed the court’s decision to take up the issue.

“It’s a great day, as female athletes in West Virginia will have their voices heard,” he said in an emailed statement. “The people of West Virginia know that it’s unfair to let male athletes compete against women.”

The 4th US Circuit Court of Appeals ruled that the West Virginia measure can’t be applied to Becky without running afoul of the US law that bars gender discrimination in schools receiving federal money.

Letting West Virginia enforce its law would mean “effectively excluding her from participation in all non-coed sports entirely,” Judge Toby Heytens said in a 2-1 decision for the Richmond, Virginia-based court. He said West Virginia might also be violating the Constitution’s equal protection clause.

West Virginia officials say Becky has defeated hundreds of girls in shot put and discus. The state says the 4th Circuit ruling upends a federal law, known as Title IX, that was designed in part to ensure that boys’ and girls’ sports teams receive equal support. The law bars discrimination “on the basis of sex.”

The 4th Circuit “took a law designed to ensure meaningful competitive opportunities for women and girls — based on biological differences — and fashioned it into a lever for males to force their way onto girls’ sports teams based on identity, destroying the very opportunities Title IX was meant to protect,” the state argued.

Becky’s lawyers countered that excluding her “from the same teams as other girls” subjected her to discrimination “on the basis of sex.” They pointed to a 2020 Supreme Court ruling that interpreted similar language in a different part of the law as protecting transgender workers from job discrimination.

Idaho First

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.

The San Francisco-based 9th Circuit, citing the Constitution’s equal protection clause, said the law couldn’t be enforced against Lindsay Hecox, a college senior and transgender woman who participates in club-level running and soccer at Boise State University.

Writing for the 9th Circuit, Judge Kim McLane Wardlaw said Idaho “failed to adduce any evidence demonstrating that the act is substantially related to its asserted interests in sex equality and opportunity for women athletes.”

Idaho said the ruling was “egregiously wrong on a constitutional issue of deep importance: whether states can preserve fairness in women’s sports.”

Hecox’s lawyers told the Supreme Court that state officials “seek to create a false sense of national emergency when nothing of the sort is presented by this case.”

The cases are Little v. Hecox, 24-38, and West Virginia v. B.P.J., 24-43.

(Updates with reaction starting in 13th paragraph.)

--With assistance from Anna Kitanaka.

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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