Next week, the U.S. Supreme Court will hear a pair of cases that plumb the heart of one of this decade’s fiercest cultural debates. The justices will hold oral arguments on Tuesday in two cases challenging state bans on transgender student participation in sports.
The cases are the latest in a series of legal disputes over if, and how, the Constitution’s guarantee of equal protection under the law extends to transgender Americans, particularly those who, though registered as males at birth, live and identify as women. The twist: These cases concern the bedrock childhood rite of passage that is school sports.
The transgender students challenging the bans argue that they’re being unlawfully excluded from participation in team sports that align with their gender identity. This exclusion, they add, denies them the social, health, and educational benefits (such as team-building skills, improved fitness, and college scholarships) that often accompany sporting competition.
Why We Wrote This
Two cases examine whether the Constitution’s guarantee of equal protection under the law extends to transgender people competing in single-sex sports. Exclusion, athletes say, denies them rights and benefits. But states say laws prevent unfair competition.
The states, meanwhile, argue that their laws are intended to protect female athletes from unfair competition (and greater risk of physical injury) when matched against transgender athletes who may have advantageous male traits, such as more muscle mass or lung capacity.
Title IX and equal protection
There are simple reasons, Idaho and West Virginia argue, for why the Supreme Court should uphold their laws. Both the Constitution and federal law require them to protect women’s ability to compete against each other in sports.
Title IX, an equal rights statute passed in 1972, requires schools to offer sex-separated sports teams. The 14th Amendment of the Constitution, meanwhile, guarantees “equal protection of the laws” for everyone in the country.
“Title IX does not require a special exemption allowing trans-identifying athletes to compete on teams of the opposite sex,” the United States wrote in an amicus brief supporting the states.
“It is even more obvious that the Equal Protection Clause does not mandate such preferential treatment” for trans-identifying athletes, the brief added.
Before the cases reached the Supreme Court, two federal appeals courts held that the state laws banning transgender girls from participating in school sports violated the law. One of those, the 9th Circuit Court of Appeals, ruled in 2023 that the Idaho law “discriminates based on transgender status.”
But in the view of the states, being transgender is not a “status” protected by Title IX or the Constitution.
Indeed, the states argue that the equal protection clause doesn’t protect transgender individuals at all. In making such an argument, they cite Supreme Court opinions from just last year.
In U.S. v. Skrmetti, the high court upheld a state law banning children from receiving gender conversion therapy.
Justice Amy Coney Barrett wrote a separate opinion, joined by Justice Clarence Thomas, stating that transgender individuals lack “obvious, immutable or distinguishing characteristics” of the “discrete” groups historically protected by the 14th Amendment.
Justice Samuel Alito wrote a concurring opinion, adding that transgender status lacks the history of pervasive discrimination and political powerlessness exhibited by other groups, such as religious, national, or racial minorities.
Striking down the state’s ban against transgender athletes participating in women’s sports, Idaho argues, would transform “equal protection from a shield against unjust discrimination into a sword that harms women and girls and imperils the future of women’s sports.”
“Too slow to qualify”
The two people at the center of these cases – Lindsay Hecox, a student at Boise State University, and a middle schooler from West Virginia identified in court documents as “B.P.J.” – paint a different picture.
First, they note that policies already existed in the states regulating the participation of transgender athletes in school sports. In Idaho, transgender women could participate in women’s school sports if they suppressed their testosterone for one year. In West Virginia, schools could let transgender athletes compete if they determined that “‘fair competition’ would not be impacted.”
When Idaho and West Virginia passed laws to ban trans-identifying female athletes, they claim, the states violated both Title IX and the Constitution. The West Virginia law “facially classifies based on sex and transgender status … because it was enacted, at least in part, for the purpose of excluding transgender girls from school sports,” argues B.P.J. in her brief.
Furthermore, both B.P.J. and Ms. Hecox note that they have not individually benefited from any physical advantages in competition. B.P.J. has identified as female since the third grade, has not gone through male puberty, and has been “too slow to qualify for running events,” according to her brief. Ms. Hecox’s brief notes that she has “consistently [run] slower than her cisgender women competitors.”
F. Brian Ferguson/Charleston Gazette-Mail/AP/File
And if the states’ goal is to preserve fair competition for female athletes, then it need not apply to Ms. Hecox and B.P.J. And if it can’t apply across the board, the athletes argue, the laws rest on “overbroad generalizations about the sexes” and violate the 14th Amendment.
Physical and psychological risks
Amid the various legal arguments, some experts worry, important nuances are being lost. While the states claim to be protecting equal opportunity for cisgender women, the reality is more complicated, says Sarah Hartley, a lawyer at Bryan Cave Leighton Paisner who specializes in Title IX compliance.
“There are physical safety concerns around contact sports that I would have if I were a girl participating with a biological male transgender athlete,” she adds.
But the Idaho and West Virginia laws are broader, she continues. They “would impact some of the recreational sports and the middle school sports, which are essentially recreational and for purposes of socialization and physical well-being.”
Sex-segregated sports serve a vital function in a community’s social fabric – a safe, women-only space that deserves protection under the law, the states argue. In this sense, the cases are about much more than Idaho and West Virginia, they state, rejecting the notion that their laws rely on an “overbroad generalization” about the effects of transgender participation in women’s school sports.
The U.S. Olympic and Paralympic Committee, as well as the NCAA, they note, changed their policies this year to ban transgender athletes from competing on women’s teams. (The two organizations noted that they did so in part to comply with a Trump administration executive order.)
In an amicus brief in support of West Virginia, Reem Alsalem, the United Nations special rapporteur for violence against women and girls, wrote that the “erosion of biological sex-based protections in sports” would have severe consequences off the field as well, including “heightened risks of … sexual harassment, voyeurism, and physical and sexual attacks in sports-related facilities and spaces.’’
Yet denying transgender athletes access to women’s sports could also have damaging consequences, argue some professional women athletes.
A report from the progressive Center for American Progress, which the athletes cite in their brief, found that while transgender youth report higher suicide-risk rates than the general population, those who participate in sports reported “significantly higher levels of psychological well-being.”
“It is essential for all students to have an equal opportunity to play school sports,” the professional athletes added in their brief.
“Significant challenges”
In one case, however, it appears to be too late.
In the six years since Ms. Hecox filed her lawsuit, she played in women’s club soccer at Boise State, but she failed to earn a place on the women’s cross-country and track teams.
In a declaration filed to the justices in early September, Ms. Hecox suggested that her case is now moot. Since the litigation began, she wrote, she “has faced significant challenges,” including her father’s passing and “negative public scrutiny” related to the case.
She “has continued to find strength and comradery in sports despite these challenges,” she wrote. But, she added, she has “decided to permanently withdraw and refrain from playing any women’s sports at BSU or in Idaho.”
