Legal briefs claim ruling favoring trans athletes would threaten religious freedom
Supreme Court to review state laws limiting female teams to biological females
Technically, a pair of U.S. Supreme Court cases involving transgender females wanting to compete on school female athletic teams don’t have anything to do with the First Amendment, which provides for freedom of religion. The cases, which challenge state laws in West Virginia and Idaho, were accepted by the high court only to consider whether the laws, which prohibit transgender females from competing with female teams, violate the U.S. Constitution and a federal antidiscrimination law.
Now, say three friend-of-the-court briefs filed by or on behalf of religious organizations, the court should look not merely at how to interpret the Constitution and federal law, but also at how its eventual ruling could affect religious freedoms. A ruling in favor of the students could have “catastrophic effects” even outside the world of athletics, says one of those briefs, one filed by the United States Conference of Catholic Bishops.
Friend-of-the-court briefs supporting the state laws were also filed by the Becket Fund for Religious Liberty, one of the nation’s biggest players in religious-freedom disputes; and a coalition that includes the Church of Jesus Christ of Latter-day Saints, the National Association of Evangelicals, the Ethics & Religious Liberty Commission of the Southern Baptist Convention; the Coalition for Jewish Values, and the Jewish Coalition for Religion Liberty. The Becket brief was not submitted specifically on the behalf of any religious group but as a statement of the law organization’s position. The coalition brief was written by law firm that has the LDS church as its biggest client.
Because supporters of the athletes have yet to file their briefs, their arguments are not included in this article.
The two cases are:
🟪 Little v. Hecox, a case that began when Lindsay Hecox filed a lawsuit in order to participate with the track team at Boise State University in Idaho. Bradley Little is the governor of Idaho.
🟪 West Virginia v. B.P.J., which began when a middle-school student, Becky Pepper-Jackson, sought to run on the cross-country and track teams at her school in Bridgeport, W. Va.
Court injunctions have allowed the two transgender females to participate until the Supreme Court makes its rulings. A transgender female is someone who was designated as biologically male at birth and now identifies as female. Some of the legal documents filed by supporters of the state laws refer to the students as males identifying as female rather than as transgender.
Both the Little and West Virginia cases involve interpretation of the 14th Amendment, which includes the Equal Protection Clause.1 The West Virginia case also also involves interpretation of the Title IX of the Education Amendments of 1972, was which designed to expand the availability athletic opportunities for female students. It allows schools to create separate male and female teams and requires the schools to provide comparable opportunities for students regardless of gender.
All three of religion-oriented briefs claim that a ruling striking the Idaho and West Virginia law would have adverse consequences outside the world of school athletics.
As evidence, the Becket brief claims that two earlier Supreme Court decisions — the Obergefell v. Hodges decision upholding same-sex marriage and the Bostock v. Clayton County ruling that expanded the Civil Rights Act of 1964 to include LGTBQ persons — impacted religious freedom:
After Obergefell and Bostock were decided, government agencies, private parties, and many lower courts acted as if the Court had said nothing at all about religion, moving almost immediately to suppress religious exercise that conflicts in any way with the newly-announced rights. Far from being, like the Court, “deeply concerned” about protecting religious exercise, these actors have at every turn sought to minimize and thwart the ability of religious communities to follow their sincerely-held beliefs about human sexuality. They have paid lip service at most to the civil and constitutional rights this Court says ought to be protected.
The brief submitted by the coalition led by the LDS church warned, among other things, that a ruling against the states would weaken protections afforded to religious practices:
Elevating transgender status under the Fourteenth Amendment will shatter the framework of rights and protections reflecting this Nation’s fundamental commitment to religious freedom. Constitutional guarantees of the free exercise of religion and equal protection are both subject to judicial balancing tests. A novel equality right would compel courts to steer between liberty and equality, without compass or star, at the expense of rights embodied in the written Constitution. And because constitutional rights prevail over statutes, elevating transgender status would weaken the Religious Freedom Restoration Act (RFRA) and create uncertainty for religious organizations in employment, public accommodations, public funding, and parental rights. Uncertainty breeds risk, and risk chills the exercise of religion. Making transgender status a quasi-suspect class will expose religious people and institutions to fines, damages suits, and the loss of public benefits — all for exercising their religion.
The brief also pointed to potential social consequences for a ruling favoring the athletes:
Constitutional law shapes national morality. Granting transgender status heightened judicial protection would recast millennia-old religious teachings about the inseparability of sex and gender as akin to racism and their adherents as bigots.
The Catholic bishops’ brief argued that a decision against the states, it defines sex discrimination as including discrimination on the basis of gender identity, could be “catastrophic” for Catholic hospitals unless the ruling makes clear that they are not required to provide gender-affirming care:
Catholic hospitals are not permitted to provide such care. Thus, they would have to stop accepting Medicare and Medicaid — to their communities’ detriment — if not exempted from any such mandate.
What happens next
The next major development in the cases will most likely be the filing of arguments by the athletes’ attorneys as well as the filing of friend-of-the-court briefs by their supporters.
The Supreme Court has not set a date for oral arguments, although they presumably will be held during the current court year, which begins next month and will end next year in June or maybe July.
Rulings in what are likely to be landmark decisions, of which this would be one, are typically released in June.
The relevant part of the 14th Amendment states: “No state shall ... deny to any person within its jurisdiction the equal protection of the laws.”