The Supreme Court Is Skeptical of Trans Athletes’ Rights

The Supreme Court appears likely to uphold laws in Idaho and West Virginia that forbid some transgender students from participating in school sports, but the court’s conservative members seemed divided on how comprehensive the defeat for transgender rights would be.

During oral arguments on Tuesday, Justice Brett Kavanaugh indicated that he supported letting each state could decide their own approach to transgender student-athletes. “A lot of states allow biological males who identify as female, transgender women and girls, to play in women’s and girls’ sports,” he told Hashim Mooppan, who represented the Trump administration, noting that he thought it might not violate the Fourteenth Amendment’s Equal Protection Clause.

That outcome would follow a familiar pattern for Kavanaugh, who emphasized in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, that he believed the Constitution was “neutral” on abortion. Other members of the court, however, appeared to be angling for a stronger stand against transgender Americans.

Justice Samuel Alito’s questions for one of the athletes’ lawyers were particularly hostile. “There are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them,” he asked Kathleen Hartnett, who represented the student who is challenging Idaho’s ban. “What do you say about them? Are they bigots? Are they deluded in thinking that they are subjected to unfair competition?” Hartnett said she would not describe them as such.

Tuesday’s session centered around two separate but similar cases. Little v. Hecox came from an Equal Protection Clause lawsuit by Lindsay Hecox, an Idaho college student who played intramural women’s club soccer at Boise State University. She had previously sought and obtained an injunction from the Ninth Circuit Court of Appeals to try out for the school’s track-and-field program, but did not make the team.

Hecox began to undergo medical gender-transition treatments as a first-year student, including medication to suppress her natural testosterone levels. “Lindsay’s medical treatment rendered her eligible to participate under NCAA rules at the time, but H.B. 500 barred Lindsay from trying out for women’s track or cross-country teams,” her lawyers told the court in their brief. (The NCAA has changed its policies since the brief was filed.)

The other case, West Virginia v. B.P.J., involved a teenage transgender girl who sought to play on her high school’s cross-country team. (The courts refer to her by her initials because she is a minor.) In 2021, however, West Virginia followed a wave of other states by passing a law that forbade “biological boys” from playing on high school or college teams designated for girls. While state lawmakers claimed they were protecting women’s sports, B.P.J.’s lawyers noted that the law effectively banned a single student—their client, who had transitioned as a minor—in West Virginia from participating in sports.

“B.P.J. wants to play sports for the same reasons most kids do: to have fun and make friends as part of a team,” her lawyers told the justices in their brief. “Her experiences on sports teams have given her the opportunity to build teamwork, confidence, and friendship while cultivating her work ethic. She feels free and fully herself when she is out on the field.” West Virginia does not have coed teams, and joining a boys’ team would be “isolating, stigmatizing, and publicly humiliating,” they explained. The Fourth Circuit Court of Appeals sided with her in 2022 on Title IX grounds.

The two states claimed that the laws were necessary because transgender athletes in girls’ sports had unfair advantages. “For female athletes to compete safely and excel, they deserve sex-specific teams,” Idaho argued in its brief for the court. West Virginia claimed that excluding B.P.J. from a girls’ team was necessary to protect women’s sports and opportunities, even though the two athletes had similar physiological characteristics to women after their transitions.

The high court’s track record with transgender rights is somewhat uneven. In 2020, the justices ruled in Bostock v. Clayton County that gay and transgender workers were protected by Title VII of the Civil Rights Act of 1964, which forbids workplace discrimination on the basis of “sex,” among other characteristics. Justice Neil Gorsuch wrote the majority opinion, joined by Chief Justice John Roberts and the four liberal justices at the time.

That ruling gave some hope to transgender-rights activists and groups that the court might not be completely hostile to LGBT rights, even as it shifted further to the right with Donald Trump’s first-term appointments. That cautious optimism was dampened by last year’s ruling in United States v. Skrmetti, where the court upheld Tennessee’s ban on gender-affirming medical treatments for minors. This time, the split fell along the court’s usual ideological lines.

In Skrmetti, the court’s conservative justices appeared divided on whether to rule that transgender Americans were a “suspect class” under the Fourteenth Amendment’s Equal Protection Clause. Courts use the term “suspect classification” to describe characteristics where government discrimination receives heightened scrutiny. Race and national origin receive strict scrutiny, the most exacting tier of judicial review. Laws that discriminating on the basis of sex receive intermediate scrutiny, reflecting the court’s willingness to sometimes treat men and women differently.

Three of the conservative justices—Alito, Clarence Thomas, and Amy Coney Barrett—said in concurring opinions in Skrmetti that they would not consider gender identity to be a suspect class. If a majority of justices had reached that conclusion, the government would face nearly no constraints when discriminating against transgender Americans. Instead, the Skrmetti court agreed to a ruling by Roberts where it held that the Tennessee law in question did not discriminate based on gender identity at all, dodging the Equal Protection Clause question altogether.

Gorsuch, during Tuesday’s arguments, appeared to flirt with the idea of recognizing transgender status as a discrete class for equal-protection purposes. He questioned Hecox’s lawyer about why she argued her client’s case on sex-discrimination grounds instead, which prompted more convoluted questions for the court. (Hartnett signaled that it was a tactical decision.) Gorsuch also appeared to challenge Idaho’s solicitor general on whether transgender Americans had experienced de jure discrimination throughout American history, which is a prong in the court’s test for weighing suspect classifications.

Roberts, on the other hand, appeared to be pressing for a narrower ruling. For most of the court’s conservative justices, there was reluctance to address deeper questions about sex discrimination, such as when boys and girls can be treated differently based on their particular aptitudes and developmental stages. (That reluctance also apparently prompted Gorsuch’s inquiry about transgender status.)

“If we follow your approach,” Roberts asked Hartnett, “which allows a challenge to even a fairly small group that’s affected, that would apply across an entire range of things where there’s a distinction currently between boys and girls quite apart from just athletics, is that correct?” Hartnett disagreed, arguing that the state law was merely trying to “control for a sex-based biological advantage,” and that her client’s medical transition and testosterone suppression should address that concern.

Justice Amy Coney Barrett, along with some of her colleagues, also questioned whether the court should reach any definitive conclusions while there was uncertainty in her view about the underlying scientific questions in the case. “Tell me why we don’t need more fact-finding or what is the state’s burden in showing what the state of scientific certainty is,” she asked Idaho Solicitor General Alan Hurst.

None of this points toward a majority siding with the transgender athletes. But it does suggest that the intra-conservative divide on the future of transgender rights remains active among the justices. A more cautious ruling could leave significant questions about anti-discrimination protections to future litigation, as the justices did in Skrmetti, while still handing the student-athletes a concrete defeat. They and their fellow Americans will learn the court’s decision when it is released sometime before the term ends in late June.