WASHINGTON — The Supreme Court on Tuesday appeared likely to uphold state laws that ban transgender athletes from taking part in girls' and women's school and college sports.
The court, which has a 6-3 conservative majority, heard more than three hours of oral arguments in separate cases involving two transgender students, Becky Pepper-Jackson and Lindsay Hecox, who challenged state bans in West Virginia and Idaho, respectively.
Both won lower court injunctions that allowed them to continue to compete in sports.
During arguments, questions asked by justices indicated a majority appeared reluctant to find that the laws violate either the 14th Amendment to the Constitution, which requires that the law apply equally to everyone, or Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education.
A key point raised by several justices is that a provision of Title IX enacted two years later, known as the Javits Amendment, specifically allows for sex classifications in sports based on biological sex.
While Title IX prohibits discrimination, the Javits Amendment constituted a major change, conservative Justice Neil Gorsuch noted. "Javits changed Title IX. It said, you know, sports are different," he said.
On the equal protection claim, Justice Amy Coney Barrett, another conservative, questioned whether a ruling for the transgender plaintiffs would open the door to "boys who just couldn't make the [boys'] team because they are just not good enough" try to play on the girls' team instead, even if they do not identify as girls.
There was wide agreement on the bench that, at least in the cases before them, the scientific consensus on to what extent transgender girls and women have a competitive advantage is not clear.
The court's three liberal justices seemed open to the idea of an equal protection claim, but it appeared there was not a likely majority on the nine-justice court for that approach.
Pepper-Jackson, a 15-year-old high school sophomore, has taken puberty blocking medication and estrogen and competed in cross-country, shot put and discus.
Hecox, a 25-year-old college student, has received testosterone suppression and estrogen treatments. She unsuccessfully tried out for track and cross-country teams in college and has since participated in running and club soccer.
The eventual ruling is likely to have nationwide implications, at least for the 25 other states with similar bans. The court seemed eager for a narrow ruling restricted to sports, which may limit its impact on litigation over other policies that affect transgender people, such as restroom access.
Conservative Justice Brett Kavanaugh, in particular, appeared eager for the court to avoid a ruling that would hinder the 23 states that allow transgender athletes to participate in girls' and women's sports.
In indicating he is leaning toward the states, he also spoke of Title IX and the growth of women's sports being "one of the great successes ... in the last 50 years" and referenced concerns raised by some that participation of transgender girls and women would undermine that success.
"There’s a harm there, and I think we can’t sweep that aside," Kavanaugh said.
The oral argument was relatively low on drama, with justices generally avoiding colorful rhetoric on the broader disputes over transgender rights.
One exception occurred when Justice Samuel Alito, a staunch social conservative, demanded that Kathleen Hartnett, the lawyer representing Hecox, comment on female athletes who have been outspoken opponents of transgender athletes participating in girls' and women's sports.
"What do you say about them? Are they bigots?" Alito asked.
"No, your honor, I would never call anyone that," Hartnett replied.
The states argue that the laws do not discriminate on the basis of transgender status but are instead a legitimate “sex-based classification” that is allowed under Title IX to protect girls and women.
It reflects the fact that, as Idaho’s lawyers put it in court papers, “men are faster, stronger, bigger, more muscular, and have more explosive power than women.”
In response, Pepper-Jackson’s lawyers argued in court papers that because she transitioned early and never experienced male puberty, there's no evidence she gained a physical advantage in sports. She is also the only student in the entire state that the law is thought to currently apply to, they added.
The court's conservative majority delivered a major blow to transgender rights last year when it upheld a Tennessee law that bans gender transition care for minors.
It also delivered further losses by allowing President Donald Trump this term to bar transgender people from the military and restrict gender designations on passports.
Earlier, in 2020, the court surprisingly ruled that Title VII of the Civil Rights Act of 1964, the federal law prohibiting discrimination in employment, applies to gender identity as well as sexual orientation.
One of the key issues heading into Tuesday's oral arguments was whether two conservative justices in the majority in that Title VII case — Chief Justice John Roberts and Gorsuch — feel the same way about Title IX. Neither appeared receptive to the arguments made by the plaintiffs on that point, although Gorsuch pressed lawyers on a separate question of whether laws targeting transgender people should be given tough scrutiny by courts because of a history of discrimination.
Some sports organizations, including the NCAA and the U.S. Olympic & Paralympic Committee, have already imposed new restrictions on transgender athletes.
Trump, an outspoken opponent of transgender rights, issued an executive order soon after taking office last year titled “Keeping Men Out of Women’s Sports,” and his administration has sided with the states in the Supreme Court case. The administration opposes state policies that allow transgender athletes to fully participate in girls' and women's sports, filing a lawsuit against California on the issue.
The West Virginia law, enacted in 2021, says gender is “based solely on the individual’s reproductive biology and genetics at birth.” As such, it says, a female is a person “whose biological sex determined at birth as female.”
The Idaho law, passed a year earlier, states that sports “designated for females, women, or girls should not be open to students of the male sex.”
