The Supreme Court on Tuesday heard oral arguments about state laws that ban transgender athletes from participating in girls’ and women’s school athletics.
Becky Pepper-Jackson of Virginia and Lindsay Hecox of West Virginia challenged state bans in their respective states. Both plaintiffs won lower court injunctions so they could continue competing.
The justices’ inquiries during arguments appeared to favor the state laws that are in place, reported NBCNews. The points at issue are that the state bans violate the 14th Amendment and Title IX, which makes sex discrimination in education illegal.
One of the issues, according to several of the justices, is that a Title IX provision known as the Javits Amendment, allows for competitors to be classified based on biological sex.
“Javits changed Title IX. It said, you know, sports are different,” said Justice Neil Gorsuch.
In reference to the equal protection claim, Justice Amy Coney Barrett, queried as to whether ruling in favor of transgender athletes could usher in a wave of underperforming boys who believe they’ll be more successful competing against girls or women even if they don’t personally identify as girls.
Pepper-Jackson, 15, is a high school sophomore who has taken puberty blockers and estrogen and whose sports of interest are cross-country, shot put, and discus.
Hecox, 25, is in college and has had testosterone suppression and estrogen treatments. Running and club soccer are currently the sports of interest for Hecox after having tried out for track and cross-country.
There are similar bans in 25 states. The SCOTUS could issue a ruling that is only applicable to sports so that other laws that affect transgender people will still carry some impact from a litigation standpoint.
Justice Brett Kavanaugh seemed to be leaning toward ruling for the states, but noted that women’s sports is “one of the great successes … in the last 50 years” and communicated concerns raised that transgender participation in girls and women’s sports would undermine that advancement.
“There’s a harm there, and I think we can’t sweep that aside,” Kavanaugh said.
The court appearance was pretty standard except for Justice Alito, known to be ardently conservative, asked the attorney for Hecox what the attorney thinks about female athletes who also opposed transgender athletes in girls’ and women’s sports.
“What do you say about them? Are they bigots?” Alito asked Kathleen Hartnett, lawyer for Hecox.
“No, your honor, I would never call anyone that,” Hartnett responded.
But, the states say that their laws don’t discriminate against transgender athletes because of the “sex-based classification” that is allowed under Title IX.
The lawyers for the state of Idaho even wrote in the filing that the state’s law takes into account that “men are faster, stronger, bigger, more muscular, and have more explosive power than women.”
Pepper-Jackson’s lawyers have argued that because their client transitioned early and never went through male puberty, it cannot be proven that there was any gained physical advantage in sports. Pepper-Jackson is apparently the only student in the state to which the law currently applies.
The law in West Virginia that was enacted in 2021 says gender is “based solely on the individual’s reproductive biology and genetics at birth.” In Idaho, a 2020 law said that sports designated for females, women, or girls should not be open to male students.
Last year, the SCOTUS, which has a 6-3 conservative majority upheld a Tennessee law that bans gender transition for minors. They also allowed the Trump administration to ban transgender people from the miliary and to place restrictions on how gender is identified on passports.
