WASHINGTON — The Supreme Court on Tuesday will tackle for the first time legal questions about state laws restricting transgender athletes from competing in girls’ sports — an issue that’s become central to GOP political messaging.
The pair of cases before the high court will test whether restrictions on transgender competition in girls’ sports, which some 27 states have on the books, are constitutional.
“If the Equal Protection Clause did protect transgender status as a protected class that could have huge implications for everything from women’s sports to military policy to bathroom usage, all sorts of things,” Carrie Severino, president of the Judicial Crisis Network, told The Post about the stakes of the cases.
As many as 122,000 transgender teenage athletes in the US could be competing in high school sports, per an analogous estimate from the Williams Institute at UCLA Law School.
The two cases, Little v. Hecox and West Virginia v. B. P. J., deal with similar questions surrounding bans on transgender athletes from competing in Idaho and West Virginia, respectively.
“This is an issue they wanted to make sure they had all the angles on,” Severino explained about why the Supreme Court is hearing the cases separately. “The two cases, while the laws are similar, they’re not identical. Also, the petitioners in the cases are slightly different.”
The two transgender sports cases explained
Idaho
The first case deals with a challenge from Lindsay Hecox, 24, who sued Idaho, which passed the Fairness in Women’s Sports Act in 2020, which was the first blanket ban in the country on allowing transgender women to compete in biological women’s sports at all levels of education.
Hecox, who came out as transgender after graduating high school in 2019, tried out for track and field teams at Boise State University, but was ultimately cut.
Proponents of allowing transgender competitors in women’s sports cite this as evidence that they don’t necessarily have advantages over biological women.
Due to Idaho’s law, Hecox was restricted from participating in a club team, hence the lawsuit.
The question before the Supreme Court is whether Idaho’s law violates the Equal Protection Clause of the Fourteenth Amendment, which guarantees all citizens “equal protection of the laws.”
Ultimately, a federal court in Idaho blocked the state from enforcing its law in a decision upheld by the 9th Circuit, both of which found the law flouted the Equal Protection Clause. Idaho’s challenge against those rulings has been brought to the Supreme Court.
Hecox pushed the high court not to take up the case.
West Virginia
The second case deals with Becky Pepper-Jackson (B.P.J.), who became transgender during the third grade, transitioning before going through male puberty.
Pepper-Jackson’s mother sued after learning that West Virginia state law — the Save Women’s Sports Act, which went into effect in 2021 — would prevent her child from competing in girls’ sports. The law preserves girls’ sports in middle school through college for biological women.
Now a high school sophomore, Pepper-Jackson has sought to compete in discus and shot put and is the only known openly transgender sports competitor in West Virginia, ABC News reported.
“She has testosterone from her adrenal glands just like every female out there, but that’s the only testosterone she has,” her mother, Heather Jackson, told the outlet.
“She’s actually not the biggest person on her team. There’s people taller than her; there’s people shorter than her. She’s just an average female teenager.”
Like Idaho, West Virginia’s law was scuttled by the lower courts. Initially, a district judge upheld it, but upon appeal, the 4th Circuit reversed it.
“Someone has to do this because this is just a terrible thing,” Pepper-Jackson told CNN ahead of oral arguments. “I know that I can handle it and it’s never crossed my mind to stop, because I know I’m doing it for everybody.”
Recently, Pepper-Jackson placed third in the state championship for discus and eighth for shot put.
At issue in the West Virginia case is whether Title IX, which bans sex-based discrimination in schools that receive federal money, means that states can’t prevent transgender individuals from competing in women’s sports.
President Trump had cited Title IX in his executive order last year to cut off federal funds for schools that let transgender athletes compete against biological women.
The other question before the high court is whether the Equal Protection Clause permits states to separate biological women from biological men in sports competitions.
What to look for during oral arguments
All eyes are likely to be on conservative Justice Neil Gorsuch during oral arguments.
That’s because Gorsuch had shocked observers five years ago in Bostock v. Clayton County, in which he found that Title VII of the Civil Rights Act allows employees to sue for discrimination over sexual orientation and gender identity.
During oral arguments, Gorsuch had been remarkably quiet, and his opinion put him at odds with the rest of the conservative majority. At the time, conservatives had a 5–4 majority; now it’s 6–3.
More recently, Gorsuch joined the conservative majority in the United States v. Skrmetti, where the high court upheld a Tennessee law restricting transgender procedures on minors.
“He’s going to be one to watch,” Severino said of Gorsuch. “Some people are trying to overread Bostock, suggesting it requires Gorsuch to find transgender status is a protected class under the Equal Protection Clause.”
“I don’t think that’s true at all,” she added. “He absolutely kept that question open. His reasoning in Bostock doesn’t require him to go there, and his vote in Skrmetti—which is a much closer analogue—suggests he won’t.”
Notably, in Skrmetti, the high court didn’t determine whether transgender individuals count as a “suspect” or “quasi-suspect” class — individuals who have historically been discriminated against.
Little v. Hecox and West Virginia v. B. P. J. are among the most high-profile and controversial cases on the Supreme Court’s docket this term.
