SCOTUS Set To Deliver Major Win For Trump, Top Court Watcher Reveals

The Supreme Court on Tuesday signaled it is likely to uphold state laws barring transgender women and girls from competing on women’s and girls’ school sports teams, a result that would hand a major win to states defending sex-based athletic categories.

After nearly three and a half hours of arguments in a pair of cases from Idaho and West Virginia, a majority of the justices appeared inclined to let the laws stand, according to top court watcher Amy Howe.

The court’s three Democratic appointees appeared to acknowledge that the challengers face long odds, focusing instead on limiting the damage by urging a narrow ruling or arguing that one of the cases should be dismissed.

Idaho enacted its law in 2020, followed by West Virginia a year later. The Idaho challenge was brought by Lindsay Hecox, now 24, a transgender woman who sought to try out for women’s track and cross-country teams at Boise State University. Hecox did not make those teams but later competed in club sports.

The West Virginia case was filed by Heather Jackson on behalf of her child, B.P.J., a 15-year-old transgender student who has publicly identified as a girl since third grade. B.P.J. has taken puberty blockers and estrogen and has competed on school track and cross-country teams.

Lower courts blocked both laws. The 9th U.S. Circuit Court of Appeals barred Idaho from enforcing its statute, agreeing with Hecox that the law violates the 14th Amendment’s equal protection clause because it was intended “to categorically ban transgender women and girls from public school sports teams that correspond with their gender identity.” The panel also found sex discrimination, concluding that athletes on girls’ and women’s teams, but not boys’ teams, are subject “to invasive sex verification procedures to implement the law.”

The 4th U.S. Circuit Court of Appeals similarly blocked West Virginia’s law, ruling it violates Title IX by discriminating against B.P.J. on the basis of sex.

Idaho Solicitor General Alan Hurst told the justices that “Idaho’s law classifies on the basis of sex because sex is what matters in sports,” pointing to differences in size, muscle mass, bone density, and heart and lung capacity. The law’s aim, he said, is to preserve equal opportunities for women and girls. “Denying special treatment isn’t classifying on the basis of transgender status,” Hurst said. “It’s consciously choosing not to.”

“All Hecox challenges,” he added, “is the law’s application to a tiny subset of males who identify as transgender and suppress their testosterone.”

West Virginia Solicitor General Michael Williams echoed that argument, saying states have long assigned sports teams by sex and that the law is meant to ensure women and girls “can safely and fairly compete in school sports.”

Lawyers for the challengers pushed back, arguing that Title IX and the Constitution protect everyone. Kathleen Hartnett, representing Hecox, and Joshua Block, representing B.P.J., said that when transgender athletes do not possess the biological advantages the laws target, there is no justification for excluding them.

Block argued that “unlike the case of a cisgender boy, excluding B.P.J. from the girls’ teams excludes her from all athletic opportunity while stigmatizing and separating her from her peers.”

Several Democratic-appointed justices appeared sympathetic to that view. Justice Ketanji Brown Jackson questioned whether a transgender athlete who lacks the physical advantages cited by the state should be able to challenge the law as applied to her, asking about “someone who is transgender but who does not have, because of the medical interventions and the things that have been done, who does not have the same threat to physical competition and safety and all of the reasons that the state puts forward.”

Hashim Mooppan, arguing for the Trump administration, countered that states need only show a substantial relationship, or “reasonable fit,” between their goal of fairness and the exclusion of transgender athletes. A “perfect fit” is not required, he said, adding that Supreme Court precedent forecloses individualized challenges when “the law is substantially related in general.”

“But here, critically,” Mooppan said, “everyone agrees that for sports, for 99 percent of men, it’s reasonably tailored. It’s just the 1 percent of trans-identifying individuals who take drugs and then those drugs are effective that’s a problem. And this Court’s” cases “make[] clear that that’s not a viable as-applied claim.”

Chief Justice John Roberts also expressed skepticism, pressing Hartnett on whether the challenge sought to undo sex-based distinctions altogether or simply carve out an exception. If such an exception were recognized, Roberts suggested, “that would have to apply across the board and not simply to the area of athletics.”

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