During oral arguments on Tuesday, Justice Brett Kavanaugh indicated that he supported letting each state could decide their own approach to transgender student-athletes. “A lot of states allow biological males who identify as female, transgender women and girls, to play in women’s and girls’ sports,” he told Hashim Mooppan, who represented the Trump administration, noting that he thought it might not violate the Fourteenth Amendment’s Equal Protection Clause.
Justice Samuel Alito’s questions for one of the athletes’ lawyers were particularly hostile. “There are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them,” he asked Kathleen Hartnett, who represented the student who is challenging Idaho’s ban. “What do you say about them? Are they bigots? Are they deluded in thinking that they are subjected to unfair competition?” Hartnett said she would not describe them as such.
Hecox began to undergo medical gender-transition treatments as a first-year student, including medication to suppress her natural testosterone levels. “Lindsay’s medical treatment rendered her eligible to participate under NCAA rules at the time, but H.B. 500 barred Lindsay from trying out for women’s track or cross-country teams,” her lawyers told the court in their brief. (The NCAA has changed its policies since the brief was filed.)
“B.P.J. wants to play sports for the same reasons most kids do: to have fun and make friends as part of a team,” her lawyers told the justices in their brief. “Her experiences on sports teams have given her the opportunity to build teamwork, confidence, and friendship while cultivating her work ethic. She feels free and fully herself when she is out on the field.” West Virginia does not have coed teams, and joining a boys’ team would be “isolating, stigmatizing, and publicly humiliating,” they explained. The Fourth Circuit Court of Appeals sided with her in 2022 on Title IX grounds.
The high court’s track record with transgender rights is somewhat uneven. In 2020, the justices ruled in Bostock v. Clayton County that gay and transgender workers were protected by Title VII of the Civil Rights Act of 1964, which forbids workplace discrimination on the basis of “sex,” among other characteristics. Justice Neil Gorsuch wrote the majority opinion, joined by Chief Justice John Roberts and the four liberal justices at the time.
In Skrmetti, the court’s conservative justices appeared divided on whether to rule that transgender Americans were a “suspect class” under the Fourteenth Amendment’s Equal Protection Clause. Courts use the term “suspect classification” to describe characteristics where government discrimination receives heightened scrutiny. Race and national origin receive strict scrutiny, the most exacting tier of judicial review. Laws that discriminating on the basis of sex receive intermediate scrutiny, reflecting the court’s willingness to sometimes treat men and women differently.
Gorsuch, during Tuesday’s arguments, appeared to flirt with the idea of recognizing transgender status as a discrete class for equal-protection purposes. He questioned Hecox’s lawyer about why she argued her client’s case on sex-discrimination grounds instead, which prompted more convoluted questions for the court. (Hartnett signaled that it was a tactical decision.) Gorsuch also appeared to challenge Idaho’s solicitor general on whether transgender Americans had experienced de jure discrimination throughout American history, which is a prong in the court’s test for weighing suspect classifications.
“If we follow your approach,” Roberts asked Hartnett, “which allows a challenge to even a fairly small group that’s affected, that would apply across an entire range of things where there’s a distinction currently between boys and girls quite apart from just athletics, is that correct?” Hartnett disagreed, arguing that the state law was merely trying to “control for a sex-based biological advantage,” and that her client’s medical transition and testosterone suppression should address that concern.
None of this points toward a majority siding with the transgender athletes. But it does suggest that the intra-conservative divide on the future of transgender rights remains active among the justices. A more cautious ruling could leave significant questions about anti-discrimination protections to future litigation, as the justices did in Skrmetti, while still handing the student-athletes a concrete defeat. They and their fellow Americans will learn the court’s decision when it is released sometime before the term ends in late June.
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