Supreme Court sides with GOP states on anti-trans sports ban

WASHINGTON (CN) — Marking a win for Republicans, the Supreme Court on Tuesday greenlit state laws banning transgender girls from participating in girls’ sports.

In a 6-3 opinion, the majority held the equal protection clause of the Fourteenth Amendment allows schools to provide separate women’s and men’s sports teams defined by biological sex.

The justices found Idaho and West Virginia have permissibly maintained female sports for biological females consistent with Title IX, which prohibits sex discrimination in educational institutions.

West Virginia and Idaho are among over two dozen states that enacted laws restricting girls’ sports teams based on genetics at birth. Two student athletes challenged the statutes under Title IX, a federal law prohibiting sex discrimination in education, and the equal protection clause of the U.S. Constitution.

Last term, the Supreme Court ruled in favor of Tennessee’s ban on gender-affirming care for minors but avoided weighing in on key constitutional protections like whether the law discriminated based on transgender status or gender identity.

“The court concludes that separate sports teams for biological males and biological females are reasonable given the inherent physical differences between the sexes,” Justice Brett Kavanaugh wrote for the majority.

“In assessing the reasonableness of the regulations, the court must recognize the distinctiveness of competitive sports — and the safety and competitive fairness issues that can arise when females are forced to compete against males. In recent years, 27 states and various sports-governing bodies have all drawn the same line,” the Donald Trump appointee added.

Two fellow Trump appointees — justices Amy Coney Barrett and Neil Gorsuch — joined the opinion, as well as Justice Clarence Thomas, a George H. W. Bush appointee, and Chief Justice John Roberts and Justice Samuel Alito, who were both appointed by George W. Bush.

They said the term “sex” in Title IX cannot plausibly be interpreted to refer to anything other than biological sex. They also pointed to when laws requiring schools to provide “equal athletic opportunity for members of both sexes” were first enacted.

The ordinary meaning of the term “sex” in the early 1970s was biological and not gender identity, particularly in the context of sports, according to the majority.

The justices rejected the argument that the school’s policy is discriminatory because it effectively excludes a transgender student from any competitive sports teams at school.

“While it is an unhappy occasion whenever a student who wants to play school sports cannot do so, the Title IX regulations guarantee only ‘equal athletic opportunity,’” Kavanaugh wrote.

Instead the majority sided with the government’s argument that under the court’s equal protection precedents, sex-based classifications are permissible only if “substantially related” to achieving an “important” government objective.

“The states argue — and the court agrees — that the interests of safety and competitive fairness are important interests for purposes of equal protection analysis,” Kavanaugh wrote.

“And the states’ sex-based classification — limiting women’s and girls’ sports to biological females—is substantially related to those interests,” he added.

Two athletes in the middle of a political firestorm

The two athletes at the center of the appeals are Becky Pepper-Jackson, a 15-year-old from West Virginia, and Lindsay Hecox, a college student at Boise State University.

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.

Hecox sued Idaho during her freshman year of college, hoping to make 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.

The Supreme Court refused to decide whether Hecox’s case was moot until after oral arguments.

On a downward spiral

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 landscapes have become more hostile to transgender rights.

President Donald 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 NCAA subsequently reversed 15 years of precedent allowing transgender women to compete on women’s teams after completing one calendar year of testosterone suppression treatment. In 2024, 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.

Pepper-Jackson and Hecox claimed the states’ prohibitions were unconstitutional as applied to them, arguing that hormone therapy eliminated biological advantages they might have had against cisgender girls.

Similar to Tennessee’s gender-affirming care case, Pepper-Jackson and Hecox urged the court to resolve their disputes through an as-applied equal protection challenge — finding that the laws were constitutional generally but unconstitutional to the transgender girls specifically.

During oral arguments in January, lingering questions on the facts and science underlying the disputes steered some justices to suggest a narrow solution tailored to school athletics. 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.

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