Can states bar trans athletes from school sports? Supreme Court to weigh in.
Next week, the U.S. Supreme Court will hear a pair of cases that plumb the heart of one of this decade鈥檚 fiercest cultural debates. The justices will hold oral arguments on Tuesday in two cases challenging state bans on transgender student participation in sports.
The cases are the latest in a series of legal disputes over if, and how, the Constitution鈥檚 guarantee of equal protection under the law extends to transgender Americans, particularly those who, though registered as males at birth, live and identify as women. The twist: These cases concern the bedrock childhood rite of passage that is school sports.
The transgender students challenging the bans argue that they鈥檙e being unlawfully excluded from participation in team sports that align with their gender identity. This exclusion, they add, denies them the social, health, and educational benefits (such as team-building skills, improved fitness, and college scholarships) that often accompany sporting competition.
Why We Wrote This
Two cases examine whether the Constitution鈥檚 guarantee of equal protection under the law extends to transgender people competing in single-sex sports. Exclusion, athletes say, denies them rights and benefits. But states say laws prevent unfair competition.
The states, meanwhile, argue that their laws are intended to protect female athletes from unfair competition (and greater risk of physical injury) when matched against transgender athletes who may have advantageous male traits, such as more muscle mass or lung capacity.
Title IX and equal protection
There are simple reasons, Idaho and West Virginia argue, for why the Supreme Court should uphold their laws. Both the Constitution and federal law require them to protect women鈥檚 ability to compete against each other in sports.
Title IX, an equal rights statute passed in 1972, requires schools to offer sex-separated sports teams. The 14th Amendment of the Constitution, meanwhile, guarantees 鈥渆qual protection of the laws鈥� for everyone in the country.
鈥淭itle IX does not require a special exemption allowing trans-identifying athletes to compete on teams of the opposite sex,鈥� the United States wrote in an supporting the states.
鈥淚t is even more obvious that the Equal Protection Clause does not mandate such preferential treatment鈥� for trans-identifying athletes, the brief added.
Before the cases reached the Supreme Court, two federal appeals courts held that the state laws banning transgender girls from participating in school sports violated the law. One of those, the 9th Circuit Court of Appeals, in 2023 that the Idaho law 鈥渄iscriminates based on transgender status.鈥�
But in the view of the states, being transgender is not a 鈥渟tatus鈥� protected by Title IX or the Constitution.
Indeed, the states argue that the equal protection clause doesn鈥檛 protect transgender individuals at all. In making such an argument, they cite Supreme Court opinions from just last year.
In U.S. v. Skrmetti, the high court upheld a state law banning children from receiving gender conversion therapy.
Justice Amy Coney Barrett wrote a , joined by Justice Clarence Thomas, stating that transgender individuals lack 鈥渙bvious, immutable or distinguishing characteristics鈥� of the 鈥渄iscrete鈥� groups historically protected by the 14th Amendment.
Justice Samuel Alito wrote a , adding that transgender status lacks the history of pervasive discrimination and political powerlessness exhibited by other groups, such as religious, national, or racial minorities.
Striking down the state鈥檚 ban against transgender athletes participating in women鈥檚 sports, , would transform 鈥渆qual protection from a shield against unjust discrimination into a sword that harms women and girls and imperils the future of women鈥檚 sports.鈥�
鈥淭oo slow to qualify鈥�
The two people at the center of these cases 鈥� Lindsay Hecox, a student at Boise State University, and a middle schooler from West Virginia identified in court documents as 鈥淏.P.J.鈥� 鈥� paint a different picture.
First, they note that policies already existed in the states regulating the participation of transgender athletes in school sports. In Idaho, transgender women could participate in women鈥檚 school sports if they suppressed their testosterone for one year. In West Virginia, schools could let transgender athletes compete if they determined that 鈥溾�榝air competition鈥� would not be impacted.鈥�
When Idaho and West Virginia passed laws to ban trans-identifying female athletes, they claim, the states violated both Title IX and the Constitution. The West Virginia law 鈥渇acially classifies based on sex and transgender status 鈥� because it was enacted, at least in part, for the purpose of excluding transgender girls from school sports,鈥� argues B.P.J. in her .
Furthermore, both B.P.J. and Ms. Hecox note that they have not individually benefited from any physical advantages in competition. B.P.J. has identified as female since the third grade, has not gone through male puberty, and has been 鈥渢oo slow to qualify for running events,鈥� according to her brief. Ms. Hecox鈥檚 notes that she has 鈥渃onsistently [run] slower than her cisgender women competitors.鈥�
And if the states鈥� goal is to preserve fair competition for female athletes, then it need not apply to Ms. Hecox and B.P.J. And if it can鈥檛 apply across the board, the athletes argue, the laws rest on 鈥渙verbroad generalizations about the sexes鈥� and violate the 14th Amendment.
Physical and psychological risks
Amid the various legal arguments, some experts worry, important nuances are being lost. While the states claim to be protecting equal opportunity for cisgender women, the reality is more complicated, says Sarah Hartley, a lawyer at Bryan Cave Leighton Paisner who specializes in Title IX compliance.
鈥淭here are physical safety concerns around contact sports that I would have if I were a girl participating with a biological male transgender athlete,鈥� she adds.
But the Idaho and West Virginia laws are broader, she continues. They 鈥渨ould impact some of the recreational sports and the middle school sports, which are essentially recreational and for purposes of socialization and physical well-being.鈥�
Sex-segregated sports serve a vital function in a community鈥檚 social fabric 鈥� a safe, women-only space that deserves protection under the law, the states argue. In this sense, the cases are about much more than Idaho and West Virginia, they state, rejecting the notion that their laws rely on an 鈥渙verbroad generalization鈥� about the effects of transgender participation in women鈥檚 school sports.
The U.S. Olympic and Paralympic Committee, as well as the NCAA, they note, changed this year to ban transgender athletes from competing on women鈥檚 teams. (The two organizations noted that they did so in part to comply with a Trump administration .)
In an in support of West Virginia, Reem Alsalem, the United Nations special rapporteur for violence against women and girls, wrote that the 鈥渆rosion of biological sex-based protections in sports鈥� would have severe consequences off the field as well, including 鈥渉eightened risks of 鈥� sexual harassment, voyeurism, and physical and sexual attacks in sports-related facilities and spaces.鈥欌��
Yet denying transgender athletes access to women鈥檚 sports could also have damaging consequences, argue some professional women athletes.
A from the progressive Center for American Progress, which the athletes cite in their brief, found that while transgender youth report higher suicide-risk rates than the general population, those who participate in sports reported 鈥渟ignificantly higher levels of psychological well-being.鈥�
鈥淚t is essential for all students to have an equal opportunity to play school sports,鈥� the professional athletes added in their .
鈥淪ignificant challenges鈥�
In one case, however, it appears to be too late.
In the six years since Ms. Hecox filed her lawsuit, she played in women鈥檚 club soccer at Boise State, but she failed to earn a place on the women鈥檚 cross-country and track teams.
In filed to the justices in early September, Ms. Hecox suggested that her case is now moot. Since the litigation began, she wrote, she 鈥渉as faced significant challenges,鈥� including her father鈥檚 passing and 鈥渘egative public scrutiny鈥� related to the case.
She 鈥渉as continued to find strength and comradery in sports despite these challenges,鈥� she wrote. But, she added, she has 鈥渄ecided to permanently withdraw and refrain from playing any women鈥檚 sports at BSU or in Idaho.鈥�
