Supreme Court majority sympathetic to states keeping trans females off of female teams
About half of states have such laws, which have been sought by evangelical activists
During oral arguments today, the U.S. Supreme Court's conservative majority appeared to be sympathetic to two states whose attorneys defended state laws to keep transgender female students from competing on the female teams.
The cases are Little v. Hecox, in which two athletes, one of them a transgender woman, is fighting Idaho’s Fairness in Women’s Sports Act, which requires competitors in the state’s public K-12 schools, colleges and universities to be biological females1; andWest Virginia v. B.P.J., in which a mother and her transgender daughter, Becky Pepper-Jackson, are challenging a West Virginia law similar to Idaho’s.
The athletes have received lower courts’ approval to compete as females, although one of the Idaho litigants, Lindsay Hecox, has decided to opt out of doing so to focus on academics.
If the high court agrees with Idaho and West Virginia, the decision likely will also invalidate laws in about two dozen other states that impose similar requirements on competition.
In most of the states, the laws were enacted with the strong support of evangelicals, many of whom believe that God created humankind in two genders that are immutable, making such laws a rejection of the divinely created order. Some evangelical groups had submitted friend-of-the-court briefs in the case supporting the laws, arguing in part that siding with the athletes could have the indirect effect of limiting religious liberty to those who hold such religious beliefs.
The legal positions in the two cases, however, are not based on religious concerns.
Lawyers representing the athletes in both cases base their arguments largely on the 14th Amendment, which provides for equal protection of the laws. Lawyers for the West Virginia girl also are arguing that her exclusion from the girls teams violates Title IX, the federal education law designed in part to expand athletic opportunities for female students.
Among the conservative justices who seemed sympathic to the states was Brett Kavanaugh, who suggested that allowing transgender females on female teams could reduce the opportunities for cisgender girls.
Meanwhile, the court's liberal justices seemed to favor allowing the trans athletes to show that they specifically would not provide unfair competition. According to court papers, the West Virginia athlete has not undergone puberty and thus presumably does not have the athletic advantages that puberty provides to biological boys.
The court likely will issue a ruling on this case in June or possibly early July.
In this article, the term “transgender female” (or girl or woman) is used to refer to refer to a person who was born as a biological male but now identifies as female.