The Supreme Court has ruled against transgender people in a string of recent cases, approving a ban on gender-affirming care for minors and green-lighting the Trump administration’s anti-trans policies on military service and passports. Heading into Tuesday’s hearings on transgender female athletes playing women’s and girls’ sports, their best realistic hope might be that the court doesn’t decide the issue at all.
It’s a dim possibility, but it’s nonetheless a procedural failsafe available to the court if, for whatever reason, the justices wind up looking for a way out. However remote the likelihood of such an outcome, it’s one to watch for as the justices question the parties on the merits of the issue as well.
‘Promoting female athletic opportunities’
The two cases in which the court is hearing arguments are Little v. Hecox and West Virginia v. B.P.J.
In the first case, Idaho Gov. Brad Little is defending the state’s Fairness in Women’s Sports Act, the first law of its kind, passed in 2020, that banned transgender women and girls from participating in women’s student sports.
Lindsay Hecox, who’s now in her mid-20s and a senior at Boise State University, sued in 2020 when she was a freshman and wanted to try out for the women’s track and cross-country teams. She won a preliminary injunction in the trial court, and the federal appeals court that covers Idaho said the trial court didn’t abuse its discretion in finding the ban likely violates equal protection guarantees. Hecox failed to make the teams but wound up playing for the women’s club soccer team.
The legal question presented in her case, as framed by the state, is whether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the 14th Amendment’s equal protection clause. Hecox framed the issue as whether the trial court erred in blocking the ban in favor of a transgender woman college student whose circulating testosterone levels are typical of cisgender women.
The state argues that its law is constitutionally permissible because it’s “substantially related to Idaho’s important interest in promoting female athletic opportunities.”
‘On the basis of sex’
In the second case, the federal appeals court covering West Virginia said that its ban can’t be lawfully applied to stop a 13-year-old transgender girl — who takes puberty-blocking medication and has publicly identified as a girl since third grade — from participating in her middle school’s cross-country and track teams. The girl, Becky Pepper-Jackson, identified by her initials B.P.J. in court papers, is now a 15-year-old sophomore.
The legal questions presented in Pepper-Jackson’s case, as framed by the state, are whether the federal law prohibiting sex-based discrimination in education (known as Title IX) prevents a state from consistently designating girls’ and boys’ sports teams based on biological sex determined at birth, and whether the equal protection clause bars a state from offering separate boys’ and girls’ sports teams based on biological sex determined at birth. Pepper-Jackson framed the questions as whether West Virginia’s categorical ban violates Title IX and the equal protection clause as applied to her specifically.
The state argues that Title IX “forbids sex discrimination — treating one biological sex worse than the other — but does not forbid sex distinctions,” and that schools “may preserve fairness and safety for female athletes by placing athletes on teams based on sex.” Pepper-Jackson argues that excluding her from girls’ sports teams because she’s a girl who is transgender is differential treatment of a “person” “on the basis of sex” under Title IX.
She cited the high court’s 2020 ruling in Bostock v. Clayton County, in which Trump appointee Neil Gorsuch led the court in holding that an employer who fires a person for being transgender violates federal law prohibiting sex-based employment discrimination. West Virginia argues that Bostock’s reasoning doesn’t apply to this case, because, it said, sex is generally irrelevant in the workplace, while “biological differences are critical to athletic fairness.”
An outside brief from scholars of federal jurisdiction tries to convince the justices to dismiss the appeals because the litigation is at a premature stage, in the scholars’ view. They took no position on the merits of the litigation but argued that “the factual and legal record is not sufficiently complete to warrant the Court’s review at this time.” It’s unlikely that the court took the cases just to dismiss them, but the justices sometimes do wind up tossing cases as having been “improvidently granted” in the first place. Perhaps more importantly, Hecox herself says her case is moot. She filed a “suggestion of mootness” ahead of the hearing, telling the justices that she decided “to permanently refrain from engaging in any women’s school-sponsored sports” covered by the Idaho law. The filing contained a declaration from Hecox that said, in part, that she’s “afraid that if I continue my lawsuit, I will personally be subjected to harassment that will negatively impact my mental health, my safety, and my ability to graduate as soon as possible.” Opposing dismissal on mootness grounds, the state argued that she “has not been prevented from playing women’s sports or lost interest in them.” The state further argued that the “about-face” raised “concerns of counsel-assisted docket manipulation.” The court didn’t decide the mootness issue ahead of the hearing, so that will be one of the things to argue about on Tuesday. If the court rules on the merits in one or both cases, with decisions expected by early July, it could have wide-ranging effects on similar laws around the country, as well as on other aspects of life for transgender people, whom the court has been ruling against. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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‘Suggestion of mootness’
