Justices sketch out narrow path forward for anti-trans sports bans

WASHINGTON (CN) — The Supreme Court seemed likely Tuesday to give states the green light to prevent transgender girls from participating in girls’ sports.

During nearly three and a half hours of oral arguments, the justices grappled with whether Idaho and West Virginia’s laws restricting girls’ sports teams based on biological sex discriminated against transgender athletes. By the end, however, lingering questions on the facts and science underlying the disputes steered the high court toward a narrow solution tailored to school athletics.

“Given that half the states are allowing transgender girls and women to participate and about half are not, why would this court jump in and try to constitutionalize a rule for the whole country?” Justice Brett Kavanaugh, a Donald Trump appointee, asked.

Under Title IX, federally funded education programs are prohibited from discriminating based on sex. The Javits Amendment gave athletics a carve out to this rule, giving schools the flexibility to separate girls and boys teams to give equal opportunities to both sexes.

Kavanaugh and several other justices pointed to Javits as an offramp for resolving the case before them without weighing in on complex constitutional issues that could affect a wide swath of laws nationwide.

Justices Amy Coney Barrett and Neil Gorsuch, both Trump appointees, asked whether states could separate boys and girls in classrooms if science supported the view that girls had an advantage over boys. Justice Elena Kagan, a Barack Obama appointee, asked if the same logic applied to a chess team if research demonstrated that boys had an advantage over girls.

“I think these are very very hard questions,” Barrett said. “I started with the math question before, but do we have to [address those] because of the Javits Amendment and because the other side has conceded that Title IX permits sex-separated sports?”

Kavanaugh added that the Javits Amendment prevented opening the door on those broader questions.

Disputed science

Two student athletes challenged the states’ laws under the 14th Amendment and federal laws prohibiting sex discrimination in education. Becky Pepper-Jackson, a 15-year-old from West Virginia, and Lindsay Hecox, a college student at Boise State University, argued that the prohibitions were unconstitutional as applied to them.

Pepper-Jackson and Hecox said that hormone therapy eliminated biological advantages they might have against cisgender girls. But the justices were skeptical of endorsing their claims when the states argued that there was no way of mitigating that biological advantage.

“It seems to me from my glance at the record, and quite a record it is, that there is a healthy scientific dispute about the efficacy of some of these treatments,” Gorsuch said.

After being diagnosed with gender dysphoria, Pepper-Jackson began to socially transition to live consistent with her female gender identity in the third grade. She started puberty blockers in 2020 and hormone replacement in 2022, preventing her from ever experiencing male puberty.

Pepper-Jackson and her mother attended oral arguments.

In 2023, the Supreme Court sided with Pepper-Jackson on the emergency docket, allowing her to remain on her middle school track-and-field team. But in the nearly three years since her emergency docket win, the legal and political landscape have become more hostile to transgender rights.

Last year, Trump issued executive orders rejecting the idea that people can transition to a gender that differs from their sex assigned at birth, prohibiting federal funding of gender-affirming health care and, with the high court’s approval, banning transgender service members from the military.

The National Collegiate Athletic Association subsequently reversed 15 years of precedent allowing transgender women to compete on women’s teams after completing one calendar year of testosterone suppression treatment. Last February, the largest college sports governing body in the country instead banned their former policy after Trump threatened to pull federal funds from schools that allowed transgender women on women’s sports teams.

In June, the Supreme Court greenlit state bans on gender-affirming care for minors. While the decision originating from a Tennessee ban on hormone blockers for minors was celebrated by conservative advocates and states looking to limit transgender rights, the narrow ruling avoided key constitutional protections.

Several justices appeared open to tackling those questions now. Justice Ketanji Brown Jackson, a Joe Biden appointee, suggested viewing the laws as discriminating based on transgender status or gender identity.

“The law expressly aims to ensure that transgender women can’t play on women’s sports teams,” Jackson said. “Why is that not a classification on the basis of transgender status?”

But Hecox and Pepper-Jackson urged the high court to take a similar path to the Tennessee case, resolving their disputes through an as-applied equal protection challenge — finding that the laws were constitutional generally but unconstitutionally to the transgender girls specifically.

“This court’s cases have recognized that when the government’s justification for a sex-based classification does not apply to a discrete subgroup of those classified, that classification is unconstitutional regarding that subgroup,” said Kathleen Hartnett, an attorney with Cooley representing Hecox.

Chief Justice John Roberts, a George W. Bush appointee, voiced opposition to this path, questioning whether it would alter the court’s precedents.

“Going sort of challenge by challenge, whether it’s based on transgender status or anything else in this situation, is really transforming intermediate scrutiny to strict scrutiny,” Roberts said.

History of discrimination

Gorsuch seemed interested in considering whether transgender individuals qualify as a quasi-suspect class — groups that have historically faced de jure and de facto discrimination.

“One might wonder whether the efforts to refashion our equal protection jurisprudence here that we’ve been discussing at length on sex discrimination is really a fallback from … your primary argument, which is that transgender status is itself a discreteness or a class,” Gorsuch said.

Hartnett said that transgender individuals qualified as a quasi-suspect class, requiring the court to review laws under heightened scrutiny.

Justice Samuel Alito, a George W. Bush appointee, said that to decide that question they’d had to define what it means to be a man or woman.

“There are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them,” Alito said. “What do you say about them? Are they bigots? Are they deluded in thinking that they are subjected to unfair competition?”

“No, Your Honor,” Hartnett responded. “I would never call anyone that. What we’re saying here is that … you don’t legislate based on undifferentiated fears. You base it on trying to make a rational response to what is a perceived issue.”

As a freshman at BSU, Hecox sued Idaho — which similarly bans transgender women from women’s sports — in hopes of trying out for the women’s track team. Hecox didn’t make the team, but she played for BSU’s women’s club soccer team for a time.

No longer a part of either team, Hecox pushed the justices to find Idaho’s case moot because it lacked a present or future dispute. She told the court that public scrutiny from the case led her to make the difficult decision to cease playing women’s sports in any context.

Idaho claimed that Hecox’s attempt to dismiss her suit at the high court was manipulative. Justice Sonia Sotomayor, an Obama appointee, said that characterization was “a little extreme.”

“Do you dispute that having a case named after you makes your infamy live forever?” Sotomayor asked the state. “You don’t think that Brown and any of the other named plaintiffs that we have in famous cases draw attention to those people as people?”

Despite supporting state prohibitions on transgender girls in girls’ sports, the federal government pushed the court to reserve judgment on whether states that allow such participation were violating the equal protection clause. The government argued that lower court litigation against states allowing transgender girls to play in girls’ sports presented different questions that the court should address in another case.

Follow @KelseyReichmann Follow @kelseyreichmann.bsky.social