The Question That the Lawyers Representing Trans Athletes Didn’t Answer
Transgender participation in women’s athletics is the single most difficult issue I’ve seen in 40 years of covering sports. It makes gambling, performance-enhancing drugs, and regulation of collegiate athletics look like tidy challenges. Two groups—trans women and cisgender women—both argue that they need equal protection from discrimination. But if they can’t have it at the same time in the often zero-sum realm of sports, who wins? As Justice Brett Kavanaugh put it during this week’s oral arguments in the first cases on the topic to come before the Supreme Court, “There are harms on both sides.”
At the core of the matter is whether trans-women athletes have a lingering testosterone advantage—a question that remains scientifically disputed. Until that point is settled, a resolution to this painful issue is hard to envision. Lawyers representing trans athletes in the two cases before the court—Little v. Hecox and West Virginia v. B.P.J., which challenge state laws that categorically ban trans women from women’s sports teams—made many torturous arguments. But they did not put forward winning ones. That’s a judgment not of their position, but of their performance. They failed to effectively answer this question: Does a trans woman who competes on a women’s team disadvantage other women?
The answer to this question is of vital importance to those who have fought for more than half a century to enforce Title IX. This stealthily radical law, enacted by Congress in 1972, forbids discrimination “on the basis of sex” in education and may be the closest thing this country has to an equal-rights amendment. It’s unclear how many people are directly affected by the issue of trans competitors in women’s sports—according to the NCAA, fewer than 10 trans students competed among 500,000 collegiate athletes in 2024. But to high-school and collegiate girls and women who fight tooth and nail for every scholarship, decent athletic facility, and ounce of confidence in what remains a man’s world, no number seems small. At the same time, few groups must fight harder for acceptance in a hostile world than trans women.
In Court this week, after more than three meandering hours of oral arguments, most of the justices didn’t seem to know what to do about this predicament, except that they’d rather not do much. This suggests that the Court may not issue a sweeping decision but will let states hash out matters locally, which would be a default loss for trans women: Currently, 29 states ban or restrict them from competing on women’s teams.
[Read: Why aren’t women allowed to play baseball?]
The dockets for Hecox and B.P.J. were loaded with amicus briefs that showed contradictory medical opinions. For the state petitioners, half a dozen sports doctors submitted 90 academic papers asserting that “even before puberty,” males have denser, stronger, and longer bones, and can “throw faster and kick harder than women.” They wrote, “No amount of testosterone suppression” would “eliminate these male athletic advantages.” According to one of those reports, boys had more speed, limb strength, and power as early as age 3.
The briefs in support of Becky Pepper-Jackson, the 15-year-old shot-putter and discus-thrower at the center of the West Virginia case, were equally adamant. Pepper-Jackson began transitioning from male to female when she was in third grade, and from sixth grade onward has taken medication to block male puberty, as well as estrogen treatment. Three researchers in exercise science wrote, “According to the scientific consensus there are no clear sex-based differences in athletic performance before the onset of puberty.” Furthermore, according to a study cited by Kathleen Hartnett, who represents the 24-year-old Idaho runner Lindsay Hecox, trans-women athletes could be at a disadvantage, if they have larger bones but less muscle and testosterone to drive their frame.
With the science unresolved, the word hypothetical was invoked by justices or counsel 18 times. Every which way the justices’ questions turned, there was a potential injustice for someone.
Where the respondents’ lawyers faltered the most was in addressing the potential harm to cisgender athletes. Hartnett admitted that the scientific record “is underdeveloped.” Joshua Block, representing Pepper-Jackson, insisted that his client has no physiological advantage at all, yet conceded that if she does in fact have an edge, “then we should lose.”
Kavanaugh asked during one exchange, “So why would we get involved at this point and constitutionalize?” The lawyers didn’t have a good answer for this or for the attendant question of how to view trans athletes under Title IX. The law forbids sex discrimination in education—yet Title IX makes an exception in recognizing biological differences in sports and allows teams to be girls- and women-only for the sake of safety, competitive fairness, and equal opportunity. Chief Justice John Roberts asked: Are trans athletes and their advocates asking the Court for an exception to the exception, and what would the constitutional implications of that be? “That would apply across an entire range of things,” he said, “where there’s a distinction currently between boys and girls quite apart from just athletics, is that correct?”
Roberts’s skepticism was not a good sign for the respondents. Roberts and Justice Neil Gorsuch joined their liberal colleagues in the 2020 Bostock v. Clayton County decision, which found that discriminating against gay and trans employees violated Title VII of the Civil Rights Act. But Roberts seemed to see a distinction between workplaces and playing fields, and he wasn’t the only one. Conservative and liberal justices alike seemed to share his worry that any ruling that touches on sex differences could be overbroad and misapplied to other areas.
[Read: What the left refused to understand about women’s sports]
Instead of answers to these concerns, the Court got evasions. Roberts pressed Hartnett as to whether she was challenging the distinction between boys and girls and asking for “an exception to the biological definition of girls.” Hartnett replied, “We’re not asking for a particular definition.” Her answers drew predictable irritation from Justice Samuel Alito, who asked, “How can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal-protection purposes?” Yet Block seemed to want the Court to do just that. In a remarkably convoluted turn of phrase, Block said, “I wouldn’t look to whether or not it’s accurate to classify, you know, B.P.J. as—as male or female,” referring to the athlete he was representing. “I think the question is: Is she being denied an opportunity because of that classification?”
When was the last time you heard a lawyer say the words I don’t know? Because the fact is, when it comes to whether there is a legacy testosterone advantage, we don’t know. Separating people by sex, unlawful in most areas of civic life, is potentially vital to fairness in sports, just as we accept other classifications, such as weight and age, in the quest for an even starting line. A person can support trans civil rights with their whole heart and favor open competition for children yet also wonder whether athletes should compete in their birth category at the higher levels, for fear that a meaningful number of women may be harmed by transgender inclusion. Americans as a whole have yet to tease out a consensus philosophy on this, much less the biology of it. Until that happens, the justices would be wise to say that the issue lacks certainty, and to ask for more clarity and science before making a broad ruling.