SCOTUS Appears Sympathetic to State Laws Banning Trans-Identifying Males from Female Sports Teams

The Supreme Court appeared sympathetic on Tuesday to state laws banning transgender-identifying males from playing on female sports teams.

The High Court heard three hours of oral arguments in two different cases about state laws in West Virginia and Idaho designed to protect women and girls’ sports from the incursion of male athletes. The cases, Little v. Hecox and West Virginia v. B.P.J., could have broad-sweeping consequences for women’s sports and represent an apex in the cultural and legal battle over fairness and whether or not trans-identifying biological males should have access to female sports teams.

The 6-3 conservative majority is expected to release a decision by summer. The Supreme Court notably issued several decisions last year curtailing the transgender activist agenda, including allowing states to ban sex changes for minors, and requiring schools to provide parents opt-outs from LGBTQ+ propaganda in curriculums. The court also appeared skeptical of Colorado’s so-called “conversion therapy” ban. 

The High Court first heard Little v. Hecox, which surrounds Idaho’s Fairness in Women’s Sports Act. The lawsuit was filed in 2020 by transgender-identifying athlete Lindsay Hecox, who wanted to join the women’s cross-country team at Boise State University.

A lower court ultimately blocked the law, which is similar to more than two dozen other laws passed around the United States protecting women’s sports. Idaho asked the Supreme Court to answer whether or not laws that seek to protect women and girls’ sports by limiting participation based on sex violate the Equal Protection Clause of the Fourteenth Amendment.

Hecox asked the Supreme Court in September of last year to dismiss the case as moot after he voluntarily moved to dismiss the case in a lower court, claiming that he would agree not to play on girls’ sports teams and did not want the attention of a huge Supreme Court case. However, justices in October decided to hear oral arguments first.

Justice Samuel Alito punched holes in the pseudo-religion of gender ideology when questioning Hecox’s attorney, Kathleen Hartnett. He specifically asked if Hartnett could define what it means to be a “boy or a girl or a man or a woman” when it came to equal protection purposes, to which he received a convoluted answer. 

“Well, how can you — how can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?” Alito pressed. 

Alito later noted that there are “an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them.”

“What — what do you say about them? Are they — are they bigots? Are they deluded in thinking that they are subjected to unfair competition?” he asked. 

Justice Brett Kavanaugh spoke about women’s sports being “one of the great successes in America over the last 50 years.”

“Some states and the federal government and the NCAA and the Olympic Committee — so these are a variety of groups who study this issue — think that allowing transgender women and girls to participate will undermine or reverse that amazing success and will, you know, create unfairness because, you said, if large numbers. Well, 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, and I think we can’t sweep that aside,” he said. 

Chief Justice John Roberts in both oral arguments seemed to weigh the potential consequences of legally creating an exception to the definition of what constitutes a female for the purpose of playing sports. 

“If we adopted that, that would have to apply across the board and not simply to the area of athletics,” he pointed out. 

Justice Clarence Thomas asked Idaho’s Solicitor General Alan Hurst if the state’s law applies not just to a transgender-identifying male but also “an individual male who is not a good athlete, say, a lousy tennis player” who does not make the men’s team and wants to try out for the women’s team. 

“That’s exactly what we’re concerned about, that their arguments about needing to make exceptions… from an otherwise valid classification for people for whom that classification doesn’t make sense, those arguments don’t limit themselves to people who identify as transgender,” Hurst said. “Many males could say ‘I can’t really compete with the women’s basketball team, and, therefore, I should be able to try out.”‘

Liberal-leaning Justice Ketanji Brown Jackson, who refused to define what a woman is in her confirmation hearing, repeatedly threw around the word “cis-women,” which is a left-wing term that just means a regular, biological woman.

“With respect to two individuals, a cis-woman and a trans-woman, who both want to play on a team that reflects their gender identity, this law operates differently based on their sex, right?” she asked. 

“The law does separate differently based on their sex, as Your Honor just said. It does not operate differently based on their transgender identity,” Hurst replied. 

Justice Department attorney Hashim Mooppan argued in favor of state restrictions. 

“It is undisputed that states may separate their sports teams based on sex in light of the real biological differences between males and females. States may equally apply that valid sex-based rule to biological males who self-identify as female,” he told justices. 

The West Virginia v. B.P.J. case surrounds a lawsuit filed by then-11-year-old transgender-identifying student Becky Pepper-Jackson and his mother against a 2021 state law barring males from competing in female sports, West Virginia’s Save Women’s Sports Act. 

A lower court blocked the law pending appeal. West Virginia asked the High Court to answer whether Title IX prevents a state from consistently designating girls’ and boys’ sports teams based on biological sex, and whether the law violates the Equal Protection Clause of the Constitution.

Oral arguments in the case started by Justice Thomas asking West Virginia Solicitor General Michael Williams how Title IX “defined the separate sexes, male and female?” Title IX bars sex discrimination in any educational program or activity as a condition of receiving federal funding. 

“Under Title IX, Your Honor, we would look to the ordinary understanding of sex at the time that Title IX was passed, 1972, and I think also relevant would be 1974, when the Javits Amendment was passed. And at that time, the ordinary understanding of sex was biological sex, consistent with the understanding of sex reflected in West Virginia’s statute. I think that’s also consistent, frankly, with this Court’s own understanding of sex in — in some of its own cases like Frontiero, where it likewise focused on things like reproductive function,” Williams responded. 

“But, with that definition, how would you square this challenge with the existence of, continued existence of, Title IX?” Thomas replied. 

“I think this challenge fails under Title IX and, in fact, it amounts to a back-door attack on Title IX in the sense that Title IX itself contemplates sex distinctions, and express regulations specifically applying to the context of athletics expressly contemplate the distinctions between sex of male and female sports teams,” Williams answered. 

Mooppan also argued for West Virginia’s law, noting that it does not ban biological males from boys’ teams. 

“I think what the other side in this case is trying to argue ….is they’re being excluded. And the problem with that is they are not being excluded from…participating on the boys’ team. They’re choosing not to participate on the boys’ team,” he said. 

In both cases, the court’s liberal leaning justices seemed to angle at making the case as narrow as possible and asked repeatedly about how exceptions would work for transgender-identifying males.

Under questioning from liberal-leaning Justice Elena Kagan, Joshua Block, an attorney at the American Civil Liberties Union arguing for Pepper-Jackson, said his argument depends on Pepper-Jackson not having a competitive advantage because he never went through male puberty. 

“But the argument goes away if — if that — if those facts go away?” Kagan asked. 

“Yes, yes, absolutely, which is — at the beginning of the argument, Justice Kagan, you talked about this could be resolved based on a legal principle or based on the facts. And I really do want to make a pitch for resolving it based on the facts because, look, if they’re right about the facts, then we should lose,” Block said. 

In his rebuttal, Williams ultimately said policy judgment should rest in the hands of the state legislature as the scientific community continues its debate. 

“In the end, this Court has recognized physical differences between men and women. They are enduring. And inherent differences between men and women are cause for celebration. That is all that West Virginia’s law does here. It should be upheld,” he said. 

The cases are Little v. Hecox, No. 24-38, and West Virginia v. B.P.J., No. 24-43 in the Supreme Court of the United States.