(The Center Square) — The U.S. Supreme Court heard arguments Tuesday in two cases over whether biological males can participate in women's and girls’ sports.
Little v. Hecox and B.P.J. v. West Virginia challenged state laws in Idaho and West Virginia, respectively, that prevent transgender women and girls from participating in female sports.
The justices weighed whether the sports bans violate the Constitution or Title IX, a federal law that prohibits sex discrimination.
Kathleen Hartnett, a lawyer representing transgender athlete Lindsay Hecox in Idaho’s case, said there is not a competitive advantage between cisgender and transgender people in sports when hormones are controlled.
“The testosterone is the advantage on this record,” Hartnett said. “This person had mitigated testosterone.”
Justices Neil Gorsuch and Brett Kavanaugh pointed to scientific uncertainty over whether blocking hormones eliminates a competitive advantage in sports. Both justices expressed uncertainty about creating a protected status for transgender individuals without more scientific consensus.
“Given that half the states are allowing it, half are not, why would we try to constitutionalize a rule for the whole country,” Kavanaugh asked.
Justice Amy Coney Barrett pointed to the state laws specifically prohibiting transgender girls and women from participating in sports on the basis of transgender status.
“Since trans boys can play on boys teams, how would we say this discriminates on the basis of transgender status,” Barrett asked.
In arguments over West Virginia's case, lawyers clashed with the justices in multiple instances over legal tactics used to argue for or against transgender individuals participating in female sports.
“Biological sex matters in athletics in ways both obvious and undeniable,” said Michael Williams, West Virginia solicitor general. “The law is indifferent to gender identity because sports is indifferent to gender identity.”
Justice Ketanji Brown Jackson pointed to inherent discrimination between cisgender women and transgender women. She appeared to signal the case must consider the differences in treatment under the law for both categories.
“The law operates differently for cisgender women and transgender women,” Jackson said.
Justice Sonia Sotomayor joined Jackson in apparent criticism of West Virginia’s legal arguments. She pointed to the lower court’s inability to find a violation of the equal protection clause, but did find a violation of Title IX.
“I’m not sure how it could do that, if the evidence is not sufficient to justify finding an equal protection violation its not a violation,” Sotomayor said.
Lawyers argued that West Virginia’s law treats Pepper-Jackson differently from other girls on sports teams throughout the state on the basis of sex. The lawyers said Title IX protections should extend to transgender individuals.
“If boys and girls as groups are being given equal sets of overall opportunity, every individual gets equal opportunity,” said Joshua Block, a lawyer for the American Civil Liberties Union who represented Pepper-Jackson.
Kavanaugh questioned whether the participation of transgender athletes would discriminate against cisgender girls and women who participate.
“Someone who tries out and makes it will bump someone else from the starting line up,” Kavanaugh said.
Justice Clarence Thomas also appeared to question the argument that a transgender individual could be included in Title IX protections when that status was likely not considered in the law's passage.
“You’re challenging a category that does not exist in the statute but is dependent on the existence of the category in the statute,” Thomas said.
In a closing rebuttal, Williams asserted a strong link between biological sex and biological athletic performance. He also pointed back to questions of competing medical science.
“In areas of evolving science and medicine, legislatures have the primary responsibility for weighing competing evidence,” Williams said.
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