The U.S. Supreme Court indicated Tuesday during oral arguments in two high-profile cases that it may uphold state bans that prohibit transgender girls and women from competing on female-designated sports teams.
Lower courts had previously ruled in favor of two transgender athletes who challenged bans in Idaho and West Virginia. These are two of the 27 states that have enacted laws that prohibit people assigned male at birth from competing on women’s sports teams.
Proponents of restricting transgender participation argue that those assigned male at birth and who undergo male puberty before transitioning retain a physiological advantage, giving them an unfair advantage over their cisgender female competitors.
In Idaho, Boise State University student Lindsey Hecox, 25, sued the state in 2020 over its ban on transgender athletes participating in college sports. Hecox, who is on testosterone suppression and estrogen as part of her transition, tried unsuccessfully for the track and cross country teams and has since participated in running and club soccer.
Hecox’s lawyers asked the high court to dismiss the case, arguing that the case is moot because she does not want to compete on the women’s team. She had previously asked for the lawsuit to be dismissed, citing “negative public scrutiny” over her challenge to the ban and a desire to focus on “academic and personal goals,” including graduating in May. But a federal judge rejected the request, ruling that the case raised broader questions about Idaho’s ban and similar restrictions on transgender athletes in other states.
In West Virginia, 15-year-old Becky Pepper Jackson filed a lawsuit over the state’s ban on transgender athletes competing in kindergarten through 12th grade. [an] Individual reproductive biology and genetics at birth. ” Her lawsuit alleges that the ban violates her right to equal protection under the law and her rights under Title IX of the Education Reform Act of 1972, which prohibits discrimination on the basis of sex.
Lawyers for Pepper Jackson asked the Supreme Court to issue a narrowing ruling exempting her from the ban, noting that their client, who has identified as a girl since she was 8 years old and has a West Virginia birth certificate that identifies her as female, is on puberty blockers and hormone therapy and has never experienced male puberty.
As a result, attorneys argue, Pepper Jackson should be allowed to compete on the school’s girls cross country and track teams because she does not possess a physiological advantage that would give her an unfair advantage over cisgender athletes.
During three hours of oral arguments on January 13, five of the six conservative justices on the nine-member court appeared to support the ban, arguing that it does not violate Title IX or the Fourteenth Amendment’s equal protection guarantee.
Several conservative justices pointed to a Title IX provision enacted two years after its passage (known as the Javits Amendment) that allows sports to be gendered based on biological sex and is often credited with expanding athletic opportunities for girls and women.
“Javits changed Title IX,” Justice Neil Gorsuch said. “I was told that sports are different.”
Justice Amy Coney Barrett questioned whether a ruling in favor of transgender plaintiffs would open the door to situations in which “boys who are not good enough to make the team” in certain sports could try to play on girls’ teams, even if they don’t identify as girls.
Conservative justices also appear to favor narrow rulings specific to sports rather than broader rulings that extend to other disputes over transgender rights, such as access to gender-affirming bathrooms.
Through his questions and statements, Justice Brett Kavanaugh appeared to lean toward a “states’ rights” approach, upholding the ban on transgender athletes in the 27 states that have enacted policies banning transgender athletes, and not forcing the remaining 23 states, including Virginia and Alaska, that have policies banning transgender athletes from women’s teams, to enact similar laws.
Kavanaugh praised Title IX and the growth of women’s sports as “one of the great successes of the last 50 years,” but expressed concern that lifting restrictions on transgender participation could deny opportunities to cisgender girls and undermine that progress.
“There’s a negative impact on individual female athletes who aren’t able to be on the team, who aren’t able to be in the stands for medals, who aren’t able to be all-league, and I don’t think that can be eradicated,” he said.
Most of the judges agreed that the scientific consensus on whether transgender athletes enjoy a competitive advantage over cisgender competitors remains unclear. As a result, the court’s three liberal justices appeared open to equal protection claims, but focused many of their questions on narrowly ruling that would allow some transgender athletes to compete based on their individual circumstances, as requested by Pepper Jackson.
Justice Ketanji Brown Jackson said, “I think all the states need to do is create an exception where people can prove that the justification for making a state’s act constitutional does not apply to them.”
Such a narrow ruling, with exceptions, could impact at least one other pending challenge to the transgender athlete’s suspension. In Arizona, two transgender teens taking puberty blockers argued that the state’s ban was discriminatory and should be exempted because they did not go through male puberty and therefore did not have an “unfair advantage” over cisgender girls. A federal judge blocked enforcement of the ban.
Notably, Gorsuch, who wrote the majority opinion in a sweeping 2020 ruling that Title VII of the Civil Rights Act of 1964 protects homosexuals and transgender people from employment discrimination, did not accept the arguments of lawyers representing transgender athletes. But he reportedly pressed lawyers on both sides about whether laws targeting transgender people should be subject to stricter scrutiny because of their history of anti-transgender discrimination. NBC News.
In recent decisions, the high court has largely rejected LGBTQ discrimination claims. Last year, the court’s conservative majority upheld the constitutionality of a state law banning gender-affirming care for minors, allowing the Trump administration to ban transgender people from military service and limit the use of gender-neutral passport markers.
The court has ruled to allow businesses to deny service to LGBTQ people and same-sex couples, sided with parents seeking advanced notice and opt-outs from lessons containing LGBTQ-themed content, and signaled support for a law that opponents say could enable efforts to forcefully change the identities of LGBTQ individuals.
Source: Metro Weekly – www.metroweekly.com
