WASHINGTON, Jan 13 (Reuters) – Conservative U.S. Supreme Court justices appeared ready on Wednesday to uphold state laws banning transgender athletes from female sports teams amid escalating efforts nationwide to restrict the rights of transgender people.
The justices heard more than three hours of arguments in appeals by Idaho and West Virginia of decisions by lower courts siding with transgender students who challenged the bans in the two states as violating the U.S. Constitution and a federal anti-discrimination law. Twenty-five other states have similar laws on the books.
The Supreme Court, which has a 6-3 conservative majority, backed other restrictions on transgender people in rulings issued last year. Republican President Donald Trump’s administration defended the laws during the arguments.
Conservative justices raised concerns about imposing a uniform rule on the entire country amid sharp disagreement and uncertainty over whether medications like puberty blockers or gender-affirming hormones eliminate male physiological advantages in sports. Questions by the liberal justices mostly signaled sympathy for the transgender challengers.
Sports are “kind of a zero-sum game for a lot of teams,” conservative Justice Brett Kavanaugh told Joshua Block, a lawyer for the transgender challengers. “And someone who tries out and makes it, who is a transgender girl, will bump someone from the starting lineup, from playing time, from the team, from the all-league (honors), and those things matter to people, big time.”
Kavanaugh, who has coached girls’ basketball teams, suggested that because the 1972 Title IX civil rights law that bars sex discrimination in schools, and its related regulations, permit teams separated by biological sex, it should be up to Congress to change that.
The Idaho and West Virginia laws designate sports teams at public schools including universities according to “biological sex” and bar “students of the male sex” from female athletic teams. The states said the laws preserve fair and safe competition for women and girls.
“If women don’t have their own competitions, they won’t be able to compete,” Alan Hurst, Idaho’s solicitor general arguing for the state, told the justices.
“Idaho’s law classifies on the basis of sex, because sex is what matters in sports,” Hurst said. “It correlates strongly with countless athletic advantages, like size, muscle mass, bone mass and heart and lung capacity.”
WIDER REPERCUSSIONS
The case could have wider repercussions for transgender people and affect whether other measures targeting them in the public sphere – including military service, bathroom access, treatment in classrooms and designations in official documents such as passports – can be enforced.
The challengers argued that the Idaho and West Virginia measures discriminate based on an individual’s sex or status as a transgender person in violation of the Constitution’s 14th Amendment guarantee of equal protection under the law, as well as Title IX, which bars discrimination in education “on the basis of sex.”
Part of the arguments focused on how the Idaho law treats people differently, whether based on sex or their status as transgender, and whether that would require the court to more skeptically assess the reasons expressed by states for adopting such measures – a form of judicial review called intermediate scrutiny.
“There’s no question here that a male who identifies as a female, but is a male, is being excluded from a female sport,” liberal Justice Sonia Sotomayor told Hurst. “By its nature, that’s a sex classification. And all sex classifications, we have said repeatedly in our case law, require intermediate scrutiny.”
The plaintiffs also contend that the use of certain medications by transgender students should matter regarding whether states can lawfully apply these bans to them if it can be shown that they do not possess sex-based physical advantages.
Kathleen Hartnett, another lawyer for the challengers, said the Idaho plaintiff mitigated the physical advantage through the use of testosterone suppressants and estrogen, eliminating the ban’s justification.
Defenders of the bans said they are valid regardless of individual circumstances, and that physical advantages remain despite medical treatments.
“Denying a special accommodation to trans-identifying individuals does not discriminate on the basis of sex or gender identity or deny equal protection. All of that remains true even assuming a man could take drugs that eliminate his sex-based physiological advantages,” said Justice Department lawyer Hashim Mooppan, arguing for the Trump administration.
Conservative Justice Samuel Alito asked Hartnett to address some of the concerns expressed about transgender women athletes.
“There are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them,” Alito said. “What do you say about them? Are they bigots? Are they deluded in thinking that they are subjected to unfair competition?”
Hartnett said she would not call them that.
“That’s the reason why there is intermediate scrutiny,” Hartnett said. “You don’t legislate based on undifferentiated fears.”
ANTI-DISCRIMINATION LAW
The court in 2020 delivered a landmark ruling protecting transgender people from workplace discrimination under a different law, called Title VII, that contains wording similar to Title IX.
Conservative Justice Neil Gorsuch, who authored the Title VII decision, appeared to indicate, along with some other justices, that the rationale of the Title VII ruling may not extend to Title IX in part because of regulations adopted under a 1974 law called the Javits Amendment that allowed for sex-separated sports teams.
“Javits changed Title IX, and it said, you know, sports are different – and we’ve got these regulations that have been out there for 50-plus years,” Gorsuch told Block.
Conservative Justice Clarence Thomas wondered if any difference existed between what the transgender plaintiffs are seeking and a “lousy” male tennis player who wants to try out for the women’s team who says, ‘There is no way I’m better than the women’s tennis players.'”
“It’s not at all different,” Hurst replied.
“Obviously, one of the great successes in America over the last 50 years has been the growth of women’s and girls’ sports. And it’s inspiring,” Kavanaugh said.
Kavanaugh noted that the federal government, certain states, the NCAA governing body for college sports and the U.S. Olympic Committee “think that allowing transgender women and girls to participate will undermine or reverse that amazing success, and will create unfairness.”
The Supreme Court last year in a case from Tennessee let states ban gender-affirming medical treatments for minors. It also let Trump ban transgender people from the military and bar passport applicants from selecting the sex reflecting their gender identities for the document.
Since returning to office last year, Trump has cast the gender identity of transgender people as a lie and issued multiple executive orders to limit their rights including one involving sports participation.
The West Virginia challenge was brought by Becky Pepper-Jackson and her mother. Pepper-Jackson, 15, competes in shot put and discus in high school.
The Idaho challenge was brought by Lindsay Hecox, a Boise State University student who previously participated in soccer and running clubs at the public university. Hecox, 25, has decided to quit sports and sought to dismiss the case in part due to a fear of harassment and growing intolerance toward transgender people. Hurst argued this does not make Hecox’s challenge moot.
A ruling is expected by the end of June.
(Reporting by Andrew Chung and John Kruzel; Editing by Will Dunham)
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