WASHINGTON, Jan 10 (Reuters) – When the U.S. Supreme Court allowed states to ban transgender youth from seeking certain medical treatments, advocates and lawyers took some comfort that the narrowly written ruling did not appear to jeopardize transgender rights more broadly.
That feeling was short-lived. Soon after issuing that ruling last June, the court took up another contentious subject fueling the culture wars over transgender rights in the United States, agreeing to decide the legality of state laws banning transgender athletes from female sports teams at public schools.
Two cases involving such bans in Idaho and West Virginia are set to be argued on Tuesday before the top U.S. judicial body, which has a 6-3 conservative majority. The states are appealing lower court decisions siding with transgender students who sued.
Twenty-seven states, most of them Republican-governed, have passed laws in recent years restricting participation in sports by transgender people.
‘SIGH OF RELIEF’
“There was, to some extent, a sigh of relief that we all breathed thinking, well, at least it was narrowly confined to this context,” Joshua Block, an American Civil Liberties Union lawyer, said of last year’s ruling upholding the Republican-backed ban in Tennessee on gender-affirming medical care.
That is why the fact that the court just weeks later agreed to take up the sports cases “was a kick in the stomach,” said Block, who represents challengers to the sports bans.
A Supreme Court ruling upholding the state laws could ripple beyond athletics, determining the validity of a wide array of laws and policies that limit the rights of transgender people, according to legal experts. Republican President Donald Trump’s administration is backing Idaho and West Virginia and is set to defend the legality of the bans during Tuesday’s arguments.
“Although these two cases only raise questions about the participation of transgender athletes in sex-segregated sports, they could have ramifications for transgender rights across a broad array of issues involving the inclusion of transgender people in public life, including restroom usage, harassment in classrooms, identity documents, the military and healthcare,” University of Southern California law professor Jessica Clarke said.
“A broad ruling could cut off many legal avenues for transgender people to challenge various forms of discrimination and exclusion,” Clarke added.
TRUMP TARGETS TRANSGENDER RIGHTS
Transgender people have faced an increasing number of restrictions at the state and national level. Trump has taken a particularly hard line since returning to office last year, casting the gender identity of transgender people as a lie and issuing multiple executive orders limiting their rights.
One Trump directive stated that the U.S. government will recognize only two sexes, male and female. Another sought to exclude transgender athletes from female sports.
The Supreme Court already has signaled sympathy toward some of Trump’s efforts.
It let Trump ban transgender people from the military and bar passport applicants from selecting the sex reflecting their gender identities for the document.
In the Tennessee case, it allowed states to ban medical treatments such as puberty blockers and hormones for people under age 18 experiencing gender dysphoria, the clinical diagnosis for significant distress that can result from an incongruence between a person’s gender identity and the sex at birth.
For proponents of transgender rights, the setbacks have been jarring given that the court in 2020 had delivered a landmark ruling protecting transgender people from workplace discrimination.
BIOLOGICAL SEX
The Idaho and West Virginia laws designate sports teams at public schools according to “biological sex” and bar “students of the male sex” from female athletic teams.
The students who sued argued that the laws discriminate based on an individual’s sex or status as a transgender person, in violation of the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law, as well as the Title IX civil rights statute, which bars the denial of benefits or discrimination in education “on the basis of sex.”
West Virginia Attorney General J.B. McCuskey, a Republican, told Reuters the importance of these laws is clear.
“Are we going to create a system where biological women have a safe and fair place to play athletics going forward?” McCuskey asked.
The state’s law creates certainty for female athletes that “all of your toiling and all of the sacrifices that you’re making to be great at sports will not be undone by a biological male who has an inherent physical advantage over you,” McCuskey said.
McCuskey said the law does not discriminate against transgender individuals “because they can play on the team with people who are similarly biologically situated as them.”
The Idaho challenge was brought by Lindsay Hecox, a transgender Boise State University student who participated in soccer and running clubs at the public university.
Hecox, 25, recently decided to quit playing sports and sought to dismiss the case. Hecox told the Supreme Court in a filing that was done in part because of concern about harassment due to negative public scrutiny and the “increased intolerance generally for people who are transgender.”
The court said it will wait to hear arguments before deciding whether Hecox’s challenge is now moot.
The challenge to West Virginia’s law was brought by Becky Pepper-Jackson and her mother Heather Jackson. They sued after Pepper-Jackson was barred from joining the girls’ cross-country and track teams in middle school due to the state’s ban.
Pepper-Jackson, now in 10th grade, attends high school in Bridgeport, West Virginia. Lower court rulings have allowed Pepper-Jackson to compete in shot put and discus.
“In 2021, politicians in my state passed a law banning me, the only transgender student athlete in the entire state, from playing as who I really am. This is unfair to me and every transgender kid who just wants the freedom to be themselves,” Pepper-Jackson, 15, told reporters in a recorded statement.
Block said the use of puberty-blocking medication or gender-affirming hormones by transgender students should matter regarding whether states can lawfully apply these bans to them, “especially when they’ve eliminated or prevented any physiological differences that would lead to any performance advantages.”
The states disagree, asserting that the advantages remain.
STATE LAWS BLOCKED
A federal judge blocked Idaho’s law, finding that it likely violates the U.S. Constitution’s guarantee of equal protection under the law. The San Francisco-based 9th U.S. Circuit Court of Appeals upheld the judge’s decision in 2023.
The judge in Pepper-Jackson’s case sided with the state, but the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals threw out that decision in 2024, ruling that exclusion from girls’ teams was “worse treatment based on sex” and caused her legal harm, in violation of Title IX.
Unlike in the Tennessee case, the Supreme Court may not be able to avoid resolving in the Idaho and West Virginia disputes whether the state laws classify people based on sex or transgender status, and if so, whether that triggers tougher judicial review, making the measures harder to defend in court.
Similarly it may need to decide whether its rationale from its 2020 ruling protecting transgender workers under a law called Title VII extends to the education sphere under the similarly worded Title IX.
Legal experts are watching for the court’s willingness to account for a person’s individual circumstances – as opposed to the population at large – when determining whether sex discrimination has occurred. Declining to do so could make it harder to mount certain lawsuits.
“This would have big implications, both for transgender rights and for other areas of equal protection law,” Rutgers Law School professor Katie Eyer said.
(Reporting by Andrew Chung; Editing by Will Dunham)
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