The Supreme Court’s conservative majority appeared skeptical of arguments Tuesday against state bans on transgender athletes playing on women’s sports teams and whether such laws violate the Constitution’s guarantee of equal protection.
Several justices focused on scientific uncertainty about whether it’s fair and safe to allow transgender women to compete on such teams. Justice Brett M. Kavanaugh asked why the court should “constitutionalize” a right for transgender women in sports when the science is still debated.
“Why would we get involved at this point?” Kavanaugh asked.
Twenty-nine states have banned transgender student-athletes from competing on women’s or girls’ sports teams. Supporters of the bans say they are necessary to ensure fairness and safety because of inherent physical differences between males and females. Opponents say the laws discriminate against trans people and should be struck down.
The cases involving student-athletes from West Virginia and Idaho are the latest in which the court will consider LGBTQ rights, particularly those of transgender people. In recent years, trans issues have become a cultural and political flash point, and sports competitions that include trans women have sparked public debate about fairness at all levels of competition.
The Supreme Court is considering whether the state bans in Idaho and West Virginia violate the Constitution’s equal protection clause. It’s also weighing whether West Virginia’s ban violates Title IX, a civil rights law that prohibits sex discrimination in education.
An estimated 300,100 transgender youth between ages 13 and 17 live in the United States, according to the Williams Institute at the UCLA School of Law. And 14 percent of trans boys and 12 of trans girls play on a sports team, according to estimates by the Human Rights Campaign, an LGBTQ+ advocacy group.
President Donald Trump early last year signed an executive order aimed at keeping trans women out of women’s sports. Soon after, the NCAA and the U.S. Olympic and Paralympic Committee updated their policies to bar trans women from playing on women’s sports teams.
“Women and girls deserve to have access to athletic and academic opportunities that come from the athletic playing field,” West Virginia Attorney General John McCuskey, said in an interview before the arguments Tuesday. “Biological differences between men make it virtually impossible for women to compete against biological males.”
Advocates for transgender people say the measures are inherently discriminatory.
“If you’re discriminating against someone who is trans — that is sex discrimination,” Shiwali Patel, senior director of education justice at the National Women Law Center, which filed an amicus brief supporting the trans athletes in the cases, said in an interview.
Patel said that reasoning is consistent with a 2020 Supreme Court decision, in which Justice Neil M. Gorsuch and Chief Justice John G. Roberts Jr., both conservatives, joined the court’s liberals in granting civil rights protections to trans workers.
Lawyers for plaintiff Lindsay Hecox, a 25-year-old Boise State University student, argue that the law in Idaho violates the Constitution’s guarantee of equal protection. They argue that the law, which was passed in 2020, barred her from trying out for the university track and field team.
After the court in July agreed to take the case, Hecox requested that the justices dismiss it. She’s stopped playing sports, her lawyers say, and she wants to graduate free of the “extraordinary pressures of litigation and related public scrutiny.”
The court is also considering a similar challenge against a West Virginia law brought by Becky Pepper-Jackson, a 15-year-old track and field athlete.
Pepper-Jackson’s lawyers argue that her equal protection rights would be violated by a state law that bans transgender women and girls from playing on women’s sports teams. They also argue that the law discriminates against her in violation of Title IX. Lower courts have allowed Pepper-Jackson to continue playing on her track and field team as her case winds through the courts.
Pepper-Jackson’s case is “about one kid and the power of the state against one kid,” Karen Loewy, interim deputy legal director for litigation for Lambda Legal, a prominent LGBTQ+ advocacy group representing Pepper-Jackson, said in an interview.
“This is about … her ability to participate in the track and field team in a way that is consistent with her identity and who she is,” Loewy said.
The justices have recently ruled against the expansion of trans rights — and have noted the possibility of ruling on others.
In June, the justices ruled 6-3 along ideological lines to uphold bans on gender transition care for minors. Justice Amy Coney Barrett wrote in a concurring opinion that the ruling called into question transgender access to bathrooms and eligibility for sports teams. State legislatures should have the power to pass laws in those areas as long as they have valid reasons, she wrote, suggesting the laws are valid. Justice Clarence Thomas joined the opinion.
Some observers note that Gorsuch and Roberts could be swing votes because they joined liberals in the 2020 case Bostock v. Clayton County. The opinion, written by Gorsuch, found that discriminating against trans workers violated Title VII of the Civil Rights Act of 1964.
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