Oral Arguments Point to Upholding Limits on Transgender Participation in Women’s Sports
Recent oral arguments in two high-profile Supreme Court cases, B.P.J. v. West Virginia and Little v. Hecox—both addressing state laws that prohibit transgender women and girls from competing on women’s and girls’ sports teams—suggest that the Court will likely side in favor of the two states, Idaho and West Virginia, in upholding restrictions on transgender athletes.
The petitioners, both of whom are female athletes who are transgender, contend that the state laws violate the equal protection clause of the 14th Amendment because the laws categorically ban women from participating in sports teams that correspond with their gender identity. The states, for their part, contend that the laws protect women’s sports by limiting participation to women based on biological sex.
The Supreme Court Justices' questioning during oral argument strongly suggested that a majority of the Court favors upholding the validity of the state laws. For example, Justice Kavanaugh expressed discomfort with the idea of fixing a nationwide, constitutional protection: "We have to decide for the whole country... When half the states are allowing transgender athletes to participate, half are not, why would we jump in and try to constitutionalize a role while there is still… uncertainty and debate?" Justice Thomas’s questioning was more colorful. He asked counsel for Hecox how the state law restrictions at issue were any different than one prohibiting a "lousy" male tennis player who wasn't good enough to make the men's team from trying out for the women's team.
The liberal Justices, however, expressed skepticism over the constitutionality of Idaho’s law. Justices Kagan and Sotomayor were the most active questioners during argument from Idaho and the U.S. government. Justice Sotomayor’s questions appeared to directly forecast her likely dissent: she views the ban on transgender athletes in women's sports as a clear sex classification, which means it must stand up to intermediate scrutiny.
Justices Kagan and Jackson focused more on whether as-applied equal protection challenges exist, what jurisprudence says about them, and whether the Court should view Hecox through such a lens. Justice Kagan noted that the Court’s precedent on as-applied equal protection challenges is “very sparse.” While Idaho’s counsel stated that as-applied equal protection challenges do exist, he emphasized that the Court shouldn’t analyze Hecox as such a challenge.
Instead, Idaho argued the issue in this case is about the challenged classifications themselves, and not how those classifications apply to individuals:
“We think that equal protection jurisprudence is about the validity of classifications. It takes a classification to trigger the doctrines to begin with, and then you ask is the classification justified under intermediate scrutiny. And so we think that's the right approach, is the classification justified, not is it justified in each individual instance...”
If the decision sides with upholding the state laws, which it very likely will, transgender women and girls will not be permitted to play sports on women's teams in Idaho, regardless of whether they have an athletic advantage or not. The broader question is whether the majority will frame its decision broadly or narrowly, and whether the majority decision will be splintered via concurrences. It is possible that the opinion will be quite narrow, focusing squarely on transgender participation in competitive athletics – an issue that has attracted popular attention and strong feelings, but that as a practical matter impacts a very small percentage of the population. Alternatively, the decision could be framed broadly, which could have ripple effects throughout the law of discrimination.
A decision is expected this summer, and will likely be among the end-of-term decisions issued in July.