The Supreme Court’s conservative majority on Tuesday seemed inclined to uphold a pair of state laws barring the participation of transgender athletes from girls’ and women’s sports teams.
The outcome of the cases from West Virginia and Idaho has implications for the 25 other states with similar laws and for athletes who compete in school and collegiate sports around the country.
Becky Pepper-Jackson, a high school sophomore from West Virginia, and Lindsay Hecox, a college senior in Idaho, challenged the laws, which require that participation on sports teams for girls be based on “biological sex,” defined as a person’s sex assigned at birth.
During more than three hours of lively discussion, the justices grappled with concerns about fairness, scientific uncertainty and discrimination and seemed divided along ideological lines.
The three liberal justices, appearing to recognize the likely outcome, suggested through their questions that even if the laws are constitutional in most cases, perhaps the two transgender athletes at the heart of Tuesday’s arguments should be able to pursue their challenges.
Allowing their cases to be reviewed again by a lower court, the justices suggested, would give the athletes a chance to try to show that they themselves do not possess unfair competitive advantages even if some transgender girls do.
The conservative justices emphasized that federal law has long allowed separate sports teams for boys and girls to ensure fair competition and raised concerns about undermining the goals of Title IX, the civil rights statute that has fueled participation in women’s sports.
The Trump administration has targeted the participation of transgender athletes in sports and the rights of transgender people more broadly. President Trump in February directed agencies to withdraw federal funding from schools that allow transgender athletes in girls’ and women’s sports. The N.C.A.A. then announced it would bar transgender women from competing.
Until now, the Supreme Court has not formally addressed the legal issues surrounding transgender athletes. But in June, the court upheld a Tennessee law banning some medical treatments for transgender adolescents, dividing along ideological lines in its opinion. The decision was a major setback for transgender rights, after the court ruled in 2020 that a federal civil rights law protected gay and transgender employees from workplace discrimination.
In upholding Tennessee’s law last year, Chief Justice John G. Roberts Jr. cited the scientific and policy debates about medical treatments for transgender minors and said such questions should be resolved by “the people, their elected representatives and the democratic process.”
Justice Brett M. Kavanaugh made a similar point on Tuesday, asking the lawyer for the Idaho athlete why the court would “jump in and try to constitutionalize a rule for the whole country while there’s still, as you say, uncertainty and debate, while there’s still strong interest in the other side?”
The chief justice was in the majority in the 2020 decision protecting transgender workers, which had been considered a major victory for transgender rights. But Tuesday, he suggested he does not believe it applies in the context of sports.
The athletes in both of Tuesday’s cases argue that the West Virginia and Idaho laws violate the Constitution’s guarantee of equal protection, which requires the government to have valid reasons for treating people differently. Ms. Pepper-Jackson, who sued to join her middle school’s girls’ cross-country team when she was 11, also asserted that her state’s statute violates Title IX, the 1972 federal law that bars sex discrimination in schools, by denying her access to the school’s athletic program and treating her worse than her peers.
Ms. Pepper-Jackson’s lawyers said she does not have an advantage over other girls because she did not go through male puberty and has been taking feminizing hormone therapy.
In a twist, Ms. Hecox has tried to drop her case because she stopped playing women’s sports. In a court filing, her lawyers have said she wishes to focus on graduating from college “without the extraordinary pressures of this litigation and related public scrutiny.” The justices had deferred a decision about what to do with the case until after Tuesday’s argument.
The Trump administration and lawyers for the states said participation of transgender female athletes threatens to undermine five decades of progress since the passage of Title IX, which has led to major increases in opportunities and participation for women in sports.
Alan M. Hurst, the Idaho solicitor general, and Michael R. Williams, the West Virginia solicitor general, told the justices that sex matters in sports.
“It correlates strongly with countless athletic advantages, like size, muscle mass, bone mass and heart and lung capacity,” Mr. Hurst said.
Hashim M. Mooppan, representing the Trump administration, said both Title IX and the 14th Amendment’s equal protection guarantee had long permitted sex-separated sports teams.
Throughout Tuesday’s argument, the justices confronted difficult questions about when boys and girls can be legally be treated differently. They raised a series of hypotheticals about whether boys and girls are different when it comes to their aptitude in all sorts of fields including calculus, chess and high school performance in general.
Some of the justices seemed eager to find a way to resolve the case without delving into these “similarly situated” arguments.
“I think it opens a huge can of worms that maybe we don’t need to get into here,” said Justice Amy Coney Barrett.
Lawyers for both athletes said the state laws at issue rely on broad generalizations about the sexes that should not apply to their clients, who they assert do not have a competitive edge over athletes assigned female at birth because of their medical treatments.
Joshua Block, an American Civil Liberties Union lawyer representing Ms. Pepper-Jackson, urged the justices to send her case back to the lower courts for a deeper review of the science and facts.
“This is an important issue that may affect the whole country,” he said, telling the justices to avoid making a broad ruling when there is still a narrow factual dispute.
Two appeals courts have sided with the students and blocked enforcement of the laws.
In the Idaho case, a federal judge said that promoting equal athletic opportunities for men and women was an important government interest, but that categorically barring Ms. Hecox did not advance those goals because of the medical treatment she receives. She is treated with testosterone suppression and estrogen.
In West Virginia, a district court judge, Joseph R. Goodwin, at first upheld the state law. He found that it did not violate the Constitution or Title IX, and concluded that “it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes.”
But a divided panel of the U.S. Court of Appeals for the Fourth Circuit said the law could not be enforced against Ms. Pepper-Jackson, specifically, in part because she said medication has prevented her from going through male puberty.
Ann Marimow covers the Supreme Court for The Times from Washington.
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