On January 13, the US Supreme Court held debates on two cases concerning transgender athletes’ participation in school sports teams, with conservative justices appearing to lean towards supporting the ban on transgender athletes. These two cases have drawn widespread attention as their outcomes will serve as precedents for similar cases in the future.
The debate lasted for nearly three and a half hours, involving Lindsay Hecox in the Little v. Hecox case and B.P.J. in the West Virginia v. B.P.J. case.
Hecox, a transgender college student, sued the state of Idaho, arguing that the state’s 2020 “Fairness in Women’s Sports Act” violated the Equal Protection Clause of the Fourteenth Amendment to the US Constitution and Title IX, which prohibits gender discrimination in education.
The federal district court allowed Hecox to participate in the women’s track team trials, acknowledging “physiological differences” between males and females but finding that the “Fairness in Women’s Sports Act” still constituted discrimination against transgender individuals.
The US Court of Appeals for the Ninth Circuit upheld this ruling, stating that gender-based distinctions are equivalent to “proxy discrimination” against transgender individuals.
B.P.J. (Becky Pepper-Jackson), a transgender high school student who lived as a girl from the third grade onwards and underwent puberty blockers and estrogen therapy, sought to block West Virginia’s “Save Women’s Sports Act.” The district court supported this law, citing that “biological males indeed have athletic advantages.” However, the US Court of Appeals for the Fourth Circuit overturned the decision, finding that there is still a “material factual dispute” regarding whether transgender athletes have a competitive advantage, and deeming the state law in violation of Title IX.
Both Hecox and B.P.J. were assigned male at birth but now identify as female, desiring to compete in their respective schools’ women’s sports teams. The laws of Idaho and West Virginia prohibit biological males from participating in female school sports.
Idaho and West Virginia maintain that their laws comply with the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.
These states argue that their laws do not violate Title IX, asserting that Title IX allows gender-based segregation in sports as long as it does not impede female athletes’ opportunities and that segregating based on biological sex is essential for ensuring the fairness of women’s sports.
During the court proceedings, representatives from both sides engaged in vigorous debates.
Alan Hurst, deputy attorney general of Idaho, argued that the law treats males and females equally, highlighting that “biological sex” is the key factor in sports, not “gender identity.” He emphasized the numerous advantages males have in sports, including physical size, muscle mass, bone density, and cardiovascular capacity, and how this has led to instances of injury for females. He accused Hecox of seeking special treatment for “males who identify as females.”
Justice Brett Kavanaugh asked whether the 23 states allowing transgender participation are infringing on the “rights of biological females.”
He further noted that since the enactment of Title IX, the progress in women’s sports has been “inspiring,” and that permitting transgender participation could “undermine or reverse” this progress, potentially causing female athletes to lose medals, which he described as “harm that cannot be ignored.”
One of the most intriguing moments in court may have been when Justice Samuel Alito questioned Kathleen Hartnett, Hecox’s lawyer.
Alito inquired, “In the context of equal protection, what do ‘boys,’ ‘girls,’ ‘men,’ and ‘women’ mean?” Hartnett responded that she did not have a definitive definition.
Alito pressed, “If the definition of gender is not known, how does the court determine if there is discrimination based on gender?”
He pointed out that many female athletes strongly oppose transgender participation, posing the question whether they are “paranoid” or perceive themselves to be victims of unfair competition.
Chief Justice John Roberts remarked that the outcome of the 2020 Bostock v. Clayton County case might not necessarily be applicable to this case, as that case incorporated “gender identity” into employment law as “sex.”
He stressed that the key issue is whether classifying based on biological sex is inherently equivalent to classifying based on transgender status.
Media analysis indicates that based on the justices’ statements, the conservative justices seem to lean towards supporting the state governments’ positions. Politico website stated that the conservative majority in the court appears inclined to allow state-level bans to remain in place.
Currently, among the nine justices on the US Supreme Court, conservatives hold six seats and liberals hold three.
The Supreme Court is expected to issue a verdict on these cases in June or early July.