The two sides in Tuesday’s cases disagree about many things, including how broadly the Supreme Court should rule in two challenges to laws barring transgender females from participating in girls’ and women’s sports.
The plaintiffs are pushing what lawyers call “as applied” challenges, urging the justices to answer only a narrow question: whether the laws are constitutional in the individual circumstances of the two transgender athletes who brought the cases before the court.
It may be, they say, that some transgender women have an unfair advantage in some sports some of the time. But the two plaintiffs, they say, should be allowed to play.
The states defending the laws, Idaho and West Virginia, counter that the court should not make case-by-case determinations. Rather, they say, the court should declare that the laws are valid and constitutional across the board in barring all transgender athletes from women’s sports.
Part of the dispute turns on whether it is accurate to say that, in general, transgender women have advantages on the playing field.
Lawyers for Lindsay Hecox, an Idaho college student, said that was not so. “It is not invariably true that all transgender women and girls will enjoy athletic advantages over cisgender women and girls — even if that generalization may hold true in some cases for other transgender women and girls,” they wrote in a Supreme Court brief.
Ms. Hecox, who was not fast enough to make her school’s track and cross-country teams but played club soccer, has “circulating testosterone at levels typical of cisgender women and girls,” the brief said.
Lawyers for the other plaintiff, Becky Pepper-Jackson, a high school student who competes in shot put and discus and has sued the state of West Virginia, said that puberty blocking drugs caused her not to go through male puberty and that hormone treatments caused her to develop female physiological characteristics.
Lawyers for Idaho responded that making individualized judgments would be unworkable, and they urged the court to issue categorical rulings sustaining the laws. The alternative, they wrote, “would require student-by-student sports-team assignments focused on individual hormone levels or physical abilities.”
Lawyers for West Virginia also asked for a broad ruling. “When it comes to sex-based classifications like this one,” they wrote, “the Supreme Court looks at a statute’s disparate treatment of men and women as a whole — not at a plaintiff’s individual circumstances.”
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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