The Supreme Court heard back-to-back challenges to state laws barring trans girls from female sports on Tuesday. Attorney General Pam Bondi didn’t wait for a ruling to share her opinion on the cases.
“Today, my attorneys are arguing a crucial Supreme Court case pushing back against the trans agenda,” Bondi wrote on X. “Our position: states have the authority to ban men from participating in women’s sports. This is common sense. We are fighting to protect girls and women in the locker room and on the playing field — and we will be successful.”
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The court’s conservative majority seems aligned with Bondi. During hours of oral arguments, their questions and comments indicated they are inclined to uphold state laws from Idaho and West Virginia that prevent transgender girls and women from participating on female sports teams at public schools and universities.
The greatest unknown is whether the court will rule narrowly in those two cases, or if it will issue a broad decision that undermines transgender rights nationally.
Justice Brett Kavanaugh was among those who seemed to side with proponents of the state bans on trans athletes. He said transgender athletes might defeat girls or women in competitions — a harm “we can’t sweep aside.”
He also questioned why the court should “constitutionalize” a right for female transgender athletes when the science on whether they hold physical advantages is unsettled.
“Why would we get involved at this point?” Kavanaugh asked.
The pair of cases — Little v. Hecox from Idaho and West Virginia v. B.P.J. — drew significant attention around the country. Athletes, coaches, lawmakers and state attorneys general filed amicus briefs for both sides.
While the cases before the court Tuesday deal only with Idaho and West Virginia laws, 25 other states have passed laws barring transgender girls and women and nonbinary athletes from female sports teams.
Although relatively few trans girls and women play organized sports — the NCAA says no more than 10 trans women compete in college athletics — the issue has become highly politicized. President Donald Trump issued an executive order last year declaring that “the official policy of the United States government is that there are only two genders: male and female.” And, as Bondi’s post on X underscores, his administration has come out strongly against trans athletes.
The arguments
Oral arguments in both cases honed in on two central legal questions.
First, do the states’ bans violate the Constitution’s Equal Protection Clause? And, second — and, perhaps more important — does Title IX, which bars sex-based discrimination in schools, apply to gender identity?
While Title IX bans sex discrimination, it doesn’t explicitly define “sex,” a point of contention in Tuesday’s arguments. The conservative majority — six to three — were skeptical that Title IX should protect transgender students.
But an attorney for the athlete who filed the Idaho case said the court would be legitimizing discrimination by saying Title IX does not protect transgender people. She pointed to a previous Supreme Court case — Boutilier vs. Immigration and Naturalization Service, from 1967 — to make her point.
“Transgender people were categorically excluded from immigration to this country under an overall umbrella of being a psychopath,” Kathleen Hartnett told the court. In the Boutilier decision, she said, the court decided “that when Congress used the term ‘psychopathic personality’ to exclude people, they meant to include homosexuals and other sex perverts.”
“Perhaps not our finest hour,” Justice Neil Gorsuch responded.
Harnett continued, “There were major cities in the country, Chicago, others, that actually barred you under subject to criminal penalty for leaving your house in clothes that weren’t matching your gender. And people were actually prosecuted under those laws. [W]e’re not saying you have to have the same history. We’re certainly not equating the experience of the transgender community to that of Black Americans or women, but just as a illegitimacy for non-marital children has been recognized as a class that gets a closer look, I think we respectfully submit here it would make sense to do so.”
Representing the state, solicitor general Alan Hurst said, “Idaho’s law classifies on the basis of sex because sex is what matters in sports. It correlates strongly with countless athletic advantages, like size, muscles mass, bone mass and heart lung capacity… Gender identity does not matter in sports, and that’s why Idaho’s law does not classify on the basis of gender identity.”
Reaction to arguments
Organizations that advocate for transgender people said they hope the court accepts the arguments that transgender athletes deserve to be protected from discrimination.
“At their core, these cases are not about sports,” Melanie Willingham-Jaggers executive director of the nonprofit advocacy group GLSEN, said in a statement to Straight Arrow News. “They are about whether transgender students deserve the same dignity, opportunity, and sense of belonging as their peers…. Blanket bans endorsed by politicians and now reviewed by this Court invite invasive scrutiny, harassment, isolation, and policing of young people’s bodies and identities. This is not fairness; it’s a license for discrimination that has the potential to ripple far beyond athletics.”
But Neal McCluskey, director of the libertarian Cato Center’s Center for Educational Freedom, said the case isn’t so simple.
“Whether to allow transgender female athletes to participate in girls’ sports is a tough question,” he said in a statement. “Is allowing it discrimination against girls because trans female athletes have a competitive advantage, or is forbidding it discrimination against trans athletes who should be able to play sports consistent with their identities.”
He suggested it’s not a question for the courts.
“Such value clashes — both sides oppose discrimination but see it differently — should not be decided by the government, but by millions of free decisions by athletes, families, coaches and educators.”
