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The US Supreme Court has seemingly leaned in favour of West Virginia and Idaho laws banning trans athletes from sports.
On 13 January, the Court heard oral arguments in two high-profile cases – West Virginia v BPJ and Little v Hecox – challenging legislation that bans trans youth from competing in interscholastic and intercollegiate sports.
Lambda Legal, Legal Voice, and the ACLU filed two challenges on behalf of two trans female athletes, Lindsay Hecox and Becky Pepper-Jackson (B.P.J.).
While attending Boise State University in 2020, Hecox – who is now 24 years old- attempted to try out for the school’s women’s track and cross-country teams, but was barred from doing so under Idaho’s overarching Fairness in Women’s Sports Act.
B.J.P., who has identified as a girl since she was in third grade and has taken puberty blockers to avoid male puberty as well as hormone therapy with estrogen, faced a similar roadblock in West Virginia under the state’s Save Women’s Sports Act.
As a result of the girls’ respective lawsuits, federal courts have blocked the enforcement of the two aforementioned bans.
During the nearly three-and-a-half-hour oral arguments, the pair’s legal representation – Kathleen Hartnett and Joshua Block – argued that the two laws violate the rights of both trans and cisgender female students under the Equal Protection Clause of the Fourteenth Amendment.
They also argued that West Virginia’s law violates Title IX, which prohibits sex discrimination in educational programs, with Block adding: “unlike the case of a cisgender boy, excluding B.P.J from the girls’ teams excludes her from all athletic opportunity while stigmatising and separating her from her peers.“
Idaho solicitor general Alan Hurst defended the state’s ban, arguing that the law “classifies on the basis of sex because sex is what matters in sports.”
Michael Williams, West Virginia’s solicitor general, echoed similar sentiments to Hurst, telling the Court that the state’s law “is indifferent to gender identity because sports are indifferent to gender identity.“
The Supreme Court’s liberal justices – Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor– seemed to be sympathetic to the Hecox and B.P.J, with the former questioning why the laws should apply to a transgender girl “who does not have, because of the medical interventions and the things that have been done, who does not have the same threat to phyiscal competition and safety and all the reasons that the state puts forward.”
On the other side of the spectrum, conservative justices seemed to lean in favour of the two states, questioning the plaintiff’s arguments that the bans widely discriminate on the basis of sex and gender identity.
“For the individual girl who does not make the team or doesn’t get on the stand for the medal or doesn’t make all league, there’s a, there’s a harm there. I think we can’t sweep that aside,“ Justice Brett Kavanaugh argued.
However, Kavanaugh seemingly suggested that states that allow transgender girls to participate in school sports should be allowed to do so.
“Given that half the states are allowing it, allowing transgender girls and women to participate, [and] about half are not, why would we at this point, just the role of this court, jump in and try to constitutionalise a rule for the whole country, while there’s still, as you say, uncertainty and debate?“ he asked.
The Supreme Court is expected to issue rulings on the two cases by spring or early summer.
While reflecting on the oral arguments, Sasha Buchert, counsel, Nonbinary & Transgender Rights Project director, Lambda Legal, said in a statement: “Becky simply wants to be with her teammates on the track and field team, to experience the camaraderie and many documented benefits of participating in team sports.
“It has been amply proven that participating in team sports equips youth with a myriad of skills – in leadership, teamwork, confidence, and health. On the other hand, denying a student the ability to participate is not only discriminatory, but harmful to a student’s self-esteem, sending a message that they are not good enough and deserve to be excluded. That is the argument we made today and that we hope resonated with the justices of the Supreme Court.”
Block echoed similar sentiments in a separate statement, adding: “This case is about the ability of transgender youth like Becky to participate in our schools and communities.
“School athletics are fundamentally educational programs, but West Virginia’s law completely excluded Becky from her school’s entire athletic program even when there is no connection to alleged concerns about fairness or safety. As the lower Court recognised, forcing Becky to either give up sports or play on the boys’ team–in contradiction of who she is at school, at home, and across her life–is really no choice at all. We are glad to stand with her and her family to defend her rights, and the rights of every young person, to be included as a member of their school community, at the Supreme Court.”
You can listen to the full oral arguments for West Virginia v BPJ here and Little v Hecox here.