The Supreme Court’s Trans Athlete Ban Cases Are About Much More Than Sports

The Supreme Court will hear back-to-back oral arguments on Tuesday for two cases that both consider whether state laws banning transgender girls and women from playing on women’s sports teams violate federal law and the Constitution.

On the stacked-argument day, the justices will first deliberate on Little v. Hecox, a lawsuit brought in Idaho by a trans college student, and West Virginia v. BPJ, brought by a trans high school student and her mother. The plaintiffs in both cases, represented by the American Civil Liberties Union, allege that state bans on trans girls participating in sports violate the equal protection clause of the 14th Amendment, and that West Virginia’s law in particular violates Title IX.

The cases could have sweeping implications for both transgender and cisgender girls and women, and raise broader legal questions around sex discrimination and privacy in education, advocates said.

In 2020, Idaho passed House Bill 500, the first ban on trans girls’ and women’s participation in women’s athletics to be enacted nationwide. The law includes a provision that allows anyone to dispute a student-athlete’s sex, which would subject them to what civil rights advocates have called invasive sex-verification, including having a doctor verify a student’s sex based on their “reproductive anatomy, normal endogenously produced levels of testosterone, or genetic makeup.”

That same year Lindsay Hecox, a trans woman who was then a freshman at Boise State University, sued Idaho hoping to be able to try out for the women’s track and cross-country team. She eventually won her case both in the district court and the 9th Circuit Court of Appeals, before the Supreme Court granted Idaho’s petition to hear the case in July last year. (Hecox has since argued that her case is moot because she no longer plays or intends to play any college sports. She noted that she feared she would be subjected to harassment if she continued with the suit, and worried that it would impact her mental health and safety.)

In a similar challenge to West Virginia’s House Bill 2917, a West Virginia family and their now 15-year-old daughter, Becky Pepper Jackson, sued after Becky was barred from trying out for the girls’ track team. The family argued, and lower courts agreed, that the state’s ban violated Becky’s Title IX rights, a federal law that protects students from sex discrimination in federally funded educational institutions, and the Equal Protection Clause of the Constitution.

In both cases, the plaintiffs’ claims are fairly narrow. They aren’t arguing that all trans girls and women should be allowed to play on women’s teams, but rather only those who have had hormone therapy to remove any so-called physiological advantages. In briefs, the plaintiffs note that both student-athlete plaintiffs have undergone hormone therapy.

Joshua Block, a senior attorney at the ACLU who will present arguments before the Supreme Court for both cases, said that in both West Virginia and Idaho, Becky and Lindsay were the only openly trans girls in their respective states trying to compete on girls’ teams.

“[West Virginia and Idaho’s] justification is that there are inherent sex-based differences,” Block said on a press call with reporters Thursday afternoon. “Even if you think that’s true, it doesn’t provide a basis for excluding our clients. In this case, the records in front of the lower courts show there are currently no advantages.”

Legal experts said it is not unusual for the Court to consider multiple cases with similar legal questions. It is possible that the Court could grant one or several decisions that fully address the various legal questions at play around sex discrimination and transgender identity in the context of sports, Block said.

If the Court rules that Title IX does not prohibit discrimination based on gender identity, at least in the context of sports, anti-trans sports bans in more than half the country would continue to be allowed to bar trans women and girls, even those whose physiology mirrors that of cisgender women and girls, from playing on female sports teams.

The Court could also consider what level of scrutiny, or assessment of whether the law violates individual rights, to apply to anti-trans sports bans. The plaintiffs are hoping that the court applies “heightened scrutiny” — the level of legal standard often used in civil rights cases — as they believe the laws discriminate based on transgender status. Advocates say that transgender people may qualify as a quasi-“suspect class,” meaning a group that has historically been subject to discrimination (and therefore, in legal understanding, courts should give extra attention to laws disproportionately impacting them).

“A lingering question that is still out there [is] if the Supreme Court will choose to address in this decision what level of scrutiny should be applied to trans folks and therefore what level of legal protection trans folks are entitled to,” said Kel O’Hara, a senior attorney at Equal Rights Advocates, a San Francisco-based nonprofit gender justice organization. Equal Rights Advocates signed on to an amicus brief by Public Counsel in support of the transgender plaintiffs.

The arrival of these cases at the Supreme Court comes amid a cultural and political battle over trans rights. Over the past five years, trans women’s participation in sports has become the topic of heated debate among Republicans nationwide. While Idaho was the first state to formally ban transgender athletes, the origins of the anti-trans sports rhetoric can be traced to a lesser-known legal battle in 2019 waged by the Alliance Defending Freedom, a conservative Christian legal group that has helped draft model legislation for state lawmakers to bar trans athletes and oppose trans rights in other aspects of public life.

In 2023, the ADF “authored” at least 130 anti-equity bills in 34 states and more than 30 were passed into law, according to an internal briefing reviewed by the New Yorker. Currently, 27 states have laws barring trans women and girls from playing on women’s sports teams.

The organization’s lawyers are now representing both West Virginia — whose sports-ban bill was one of those written by the ADF — and Idaho in their cases.

Since returning to the White House, President Trump has also made barring trans women and girls from playing women’s sports a top priority of his administration, in addition to mocking them in his speeches. In February last year, he signed a sweeping executive order barring trans women and girls from playing women’s sports. His administration paused federal funding for several schools with trans-inclusive athletic policies and launched investigations into colleges across the country.

Trump rescinded the Biden administration’s previous guidance around Title IX, which allowed trans students to participate in sports and use locker rooms that align with their gender identity. He also ordered the Departments of State and Homeland Security to review visa policies around athletes seeking to compete in women’s sports and asked the Attorney General to prioritize enforcing civil rights law against schools that allow trans women to use women’s locker rooms.

Republicans across the government have claimed that these laws are needed to protect women’s sports from trans athletes; however, lawmakers have rarely, if ever, addressed the actual systemic issues, such as pay inequities, sexual harassment, or chronic underfunding, facing women’s sports.

Advocates also worry that if the Supreme Court allows these laws to take effect, it could open the door to broader privacy issues for student-athletes across the board. In 2020, Florida schools briefly asked students to answer questions about their menstrual cycles in a health form, and asked students to list their sex assigned at birth instead of just their sex. This month, a Washington state PAC claimed it gathered enough signatures to put a trans sports ban on the ballot, which would require anyone who wants to play for a female sports team to have a doctor verify their “biological sex” based on their reproductive anatomy and their body’s natural production of testosterone.

Anti-trans sports laws embolden harassment not just towards trans women and girls but also cis women, O’Hara said. There have already been numerous instances of adults — including school officials — harassing and investigating girl athletes who were assumed to be trans because of their gender expression or appearance.

The roots of sex testing in athletes can be traced back to Nazi Germany. The Nazis introduced the practice with nude exams and, later, hormonal testing to make determinations about who was, and who was not, considered a woman ahead of the 1936 Olympics. Today this practice disproportionately targets cisgender women of color from the Global South, according to a 2020 report from Human Rights Watch.

“Ultimately, this encourages increased gender policing and whether it’s explicit or more implicit like creating a culture of suspicion and mistrust,” O’Hara said. “We’re opening the door to harassment and hostile environments and reinforcing harmful stereotypes about gender and athletics. This can cause women and girls to feel pressure to subscribe to traditional ideas of femininity to keep themselves safe, and can force them to feel like they shouldn’t play sports because it’s going to violate their privacy and dignity.”