The Supreme Court heard three hours of oral arguments on Tuesday about whether states can ban transgender girls from competing on girls’ and women’s school sports teams. Numerous media outlets have said that the court seemed sympathetic and supportive of state bans on trans female athletes, but the justices’ comments were difficult to interpret.

The cases before the court are West Virginia v. B.P.J., which involves 15-year-old West Virginia shot-putter and discus thrower Becky Pepper-Jackson, who has publicly identified as female since the third grade; and Little v. Hecox, which involves Lindsay Hecox, a 25-year-old Idaho resident who sued after Boise State University refused to let her try out for the women’s track and cross-country teams.

Related

MacKenzie Scott just made a $45 million donation to LGBTQ+ youth

Both won lower court injunctions that allowed them to compete, despite their states’ bans on trans female athletes. Hecox ultimately chose not to try out for her university’s teams, something she and her lawyer argued made her case moot, though the Supreme Court justices said on Tuesday that they’ll decide on that point in their forthcoming ruling.

Because both Pepper-Jackson and Hecox began hormone blockers before puberty, the court arguments focused on whether trans girls and women have physical advantages over cisgender girls and women. Lawyers supporting trans athletes said that medical transitioning erases such advantages; the lawyers in favor of state bans disagreed.

Never Miss a Beat

Subscribe to our newsletter to stay ahead of the latest LGBTQ+ political news and insights.
Subscribe to our Newsletter today

The arguments didn’t focus much upon whether state bans on trans athletes constitute sex-based discrimination in violation of the Constitution’s Equal Protection Clause or Title IX of the 1964 Civil Rights Act, which forbids educational discrimination “on the basis of sex.”

While the 2020 Supreme Court decision in the case of Bostock v. Clayton County ruled that anti-LGBTQ+ discrimination is a form of sex-based discrimination forbidden by the 1964 Civil Rights Act, the act has treated sports differently due to the Javits Amendment, a law passed two years after Title IX’s passage.

The amendment specified that schools may enforce sex-based separations in sports, just as long as the general opportunities to participate remain equal for all students, regardless of sex. For example, because of the Javits Amendment, a school may maintain a boys’ football team and a girls’ volleyball team without also offering a girls’ football team and a boys’ volleyball team, just as long as all students have an equal opportunity to participate in some sport, even if it’s not their preferred one.

During the arguments, both sides interpreted Title IX differently. The anti-trans lawyers said it’s discriminatory to require female athletes to compete alongside trans female athletes because doing so infringes on female athletes’ opportunities to excel in sports while allowing “biological males” to take away their awards and resources. The pro-trans lawyers argued that it’s discriminatory to ban trans athletes based on the sex they were assigned at birth, since Title IX forbids any discrimination based on sex (a principle upheld in the Bostock ruling).

“There’s no question here that a male who identifies as a female, but is a male, is being excluded from a female sport,” liberal Justice Sonia Sotomayor told Idaho Solicitor General Alan Hurst, who is defending his state’s ban. “By its nature, that’s a sex classification. And all sex classifications, we have said repeatedly in our case law, require intermediate scrutiny,” Sotomayor added, referencing a form of judicial review that would require the court to more skeptically examine the state’s reasons for adopting its anti-trans sports bans.

But Hurst said that even though there has been a history of discrimination against trans people in the U.S., that isn’t the issue here. The issue, he said, was whether trans female athletes have distinct physical advantages over their cis competitors and teammates.

Hurst said it was clear that cisgender women and girls have lost hundreds of medals to transgender women, but he offered no proof to back up his claim. In fact, Pepper-Jackson is the only known trans student-athlete in his entire state, and even the NCAA recently admitted that fewer than 10 of its 550,000 college athletes nationwide identify as trans.

Harnett said that the number of trans female athletes who have “participated and excelled” in girls’ and women’s sports are “few and far between.”

Focus on trans female athletes’ possible “physical advantages”

During arguments, Hashim Mooppan, a lawyer for the current presidential administration, argued that no amount of hormonal changes can alter a person’s biological sex or gender as defined by state law. “In short, male athletes who take performance-altering drugs are not similarly situated to female athletes, and states need not treat them the same,” Mooppan said.

Hurst also argued that being assigned a male sex at birth provides trans female athletes with “countless athletic advantages, like size, muscle mass, bone mass, and heart and lung capacity.” In response, Hecox’s attorney Kathleen Hartnett argued that her client’s use of testosterone suppressants and estrogen mitigated any such athletic advantages.

However, conservative Justice Neil Gorsuch said, “There is a healthy scientific dispute about the efficacy of these [medical] treatments” in eliminating the athletic advantages of people assigned a male gender at birth, and the court’s liberal justices agreed with his assessment.

Conservative justices framed some issues dishonestly

Conservative Justice Amy Coney Barrett questioned whether a pro-trans ruling in this case would allow “boys who just couldn’t make the [boys’] team because they are just not good enough” try to play on the girls’ team instead, NBC News reported.

Her question echoes right-wing transphobic rhetoric and doesn’t reflect the reality of trans-inclusive sports policies, which often require athletes to provide a doctor’s note affirming that they have undergone a prolonged period of medical transition.

Barrett also asked Harnett whether the bans are really discriminatory, seeing as trans kids can still compete in the sports matching the sex they were assigned at birth, and trans boys and men can still play on sports teams matching their gender identity.

Hartnett explained that her case focuses on trans girls and women, a specific subgroup discriminated against by the law, and noted that past Supreme Court cases have never required all members of an entire class to be discriminated against in order for the court to rule on anti-discrimination protections.

Conservative Justice Brett Kavanaugh called the growth of girls’ and women’s sports over the last 50 years “inspiring” and “one of the great successes in America over the last 50 years,” but noted that the federal government, certain states, the NCAA governing body for college sports and the U.S. Olympic Committee “think that allowing transgender women and girls to participate will undermine or reverse that amazing success, and will create unfairness.”

Kavanaugh’s comment was disingenuous, however, seeing as the NCAA and U.S. Olympic Committee both allowed trans competitors until very recently, when they banned them under pressure from the current presidential administration. The presidential administration has dismissed trans identity as a mental illness that deserves no government recognition or legal protections and threatened to investigate and prosecute organizations that allow trans female athletes to compete against cis female athletes.

“Given that half the states are … allowing transgender girls and women to participate, about half are not, why would we at this point … and try to constitutionalize a rule for the whole country while there’s still … uncertainty and debate,” Kavanaugh said, noting that 27 states currently have bans on trans female athletes.

At one point, Justice Samuel Alito asked what to make of cisgender female athletes who have vocally opposed allowing trans girls to compete. “What do you say about them?” he asked Hartnett. “Are they bigots? Are they deluded in thinking they are subjected to unfair competition?”

“No, your honor, I would never call anyone that,” Hartnett replied, adding that she only wanted to know whether the states’ laws meets constitutional standards. “That is not an accusation of animus,” she added.

The case could end Title IX’s protections for LGBTQ+ students

When the court asked Harnett to define “sex” as a way to better understand the constitutional provision that guarantees equal legal protection for people, Hartnett declined, focusing instead that the law forbids Hecox as a “birth sex male” even though her birth certificate now lists her as birth sex as “female.”

Outside the court, competing demonstrations of pro- and anti-trans groups screamed at one another.

“What’s at issue in this case is fair treatment for all people, including cis people and trans people,” said Josh Block, one of the pro-trans lawyers who argued in front of the court, said on the court steps after the hearing.

A decision is expected by summer. If the court rules that trans athletes aren’t covered by Title IX’s protections, the ruling could be used to justify rolling back other trans-inclusive student policies, including the ability to use restrooms, chosen pronouns, and names matching their gender identity. Such a ruling could leave trans students with even fewer legal protections against bullying, harassment, and discrimination, The Guardian wrote.

In a statement issued last week, Pepper-Jackson said she plays sports to “make friends, have fun, and challenge myself through practice and teamwork.”

“All I’ve ever wanted was the same opportunities as my peers,” she said. “But in 2021, politicians in my state passed a law banning me – the only transgender student athlete in the entire state – from playing as who I really am. This is unfair to me and every transgender kid who just wants the freedom to be themselves.”

Subscribe to the LGBTQ Nation newsletter and be the first to know about the latest headlines shaping LGBTQ+ communities worldwide.