The Supreme Court on Tuesday ruled that states can exclude transgender athletes from women’s and girls’ sports teams. The justices ruled unanimously that laws enacted by Idaho and West Virginia do not violate federal civil rights laws, but they divided over whether the West Virginia law violates the Constitution, at least with regard to the athlete in the case before the court.
In his 29-page opinion, Justice Brett Kavanaugh wrote that “[c]onsistent with Title IX and the Equal Protection Clause, we hold that the States may maintain women’s and girls’ sports for biological females. They may determine eligibility for women’s and girls’ sports based on biological sex. The Constitution and Title IX do not require an overhaul of women’s and girls’ sports throughout America.”
Justice Sonia Sotomayor, in an opinion joined by Justices Elena Kagan and Ketanji Brown Jackson, contended that “the majority extends great sympathy to those it favors: the young cisgender girls and women who play sports. I share that sympathy. Playing sports can lead to benefits that are immeasurable, and many are understandably invested in ensuring that competition stays fair and safe. Because the majority, however, inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions, I respectfully dissent.”
The court’s decision in West Virginia v. B.P.J. and Little v. Hecox came just over a year after the Supreme Court, also by a vote of 6-3, upheld a Tennessee law banning the use of puberty blockers and hormone therapy by transgender teenagers.
Tuesday’s ruling centers on two laws that limit participation on women’s and girls’ teams. Idaho enacted the Fairness in Women’s Sports Act in 2020. The law bars transgender women and girls from participating on any women’s and girls’ sports teams in public schools, from elementary school through college. Idaho was the first state to pass such a law; since then, 25 other states have enacted similar bans.
The West Virginia Legislature passed that state’s law, known as the Save Women’s Sports Act, in 2022. The law prohibits transgender women and girls from participating on women’s and girls’ sports team in public secondary schools and colleges.
There are two challengers in two separate cases, which were argued on the same day in January. One challenger is Lindsay Hecox, who filed this lawsuit because she wanted to try out for the women’s track and cross-country teams at Boise State University in Idaho. Hecox did not make the NCAA teams at BSU but competed in women’s soccer at the club level.
The other challenger is Becky Pepper-Jackson, identified in court filings only as B.P.J., a 15-year-old high school student who has publicly identified as female since the third grade. Pepper-Jackson takes medicine to stave off the onset of male puberty and has also begun to receive hormone therapy with estrogen. Pepper-Jackson’s mother, Heather Jackson, went to federal court in West Virginia when she learned that her state’s law would bar Pepper-Jackson from participating on the girls’ middle school sports teams.
The U.S. Court of Appeals for the 9th Circuit agreed with Hecox that the Idaho law violates the 14th Amendment’s guarantee of equal treatment and prohibited Idaho from enforcing the ban. The court of appeals reasoned that the Idaho law was intended “to categorically ban transgender women and girls from public school sports teams that correspond with their gender identity.” The law also discriminates on the basis of sex, the lower court ruled, because athletes on girls’ and women’s teams are subject “to invasive sex verification procedures to implement that policy,” while athletes on boys’ and men’s teams are not.
A federal appeals court in Richmond also barred West Virginia from enforcing its law. Specifically, the U.S. Court of Appeals for the 4th Circuit ruled that West Virginia’s law violates Title IX, a federal civil rights law that prohibits sex discrimination in educational programs and activities that receive federal funding, because it discriminates against Pepper-Jackson on the basis of sex.
