Supreme Court open to transgender sports bans, but some justices are grappling with issue for states

Republican-led states asked the Supreme Court on Tuesday to uphold their laws that generally bar biological males from female sports, saying women and girls deserve leagues of their own.

The majority of the justices appeared open to that argument, though they wrestled with the implications. They wondered whether that would mean opening the door to segregated chess teams and academic classes or eliminating same-sex locker rooms and separate teams for males and females.

The court’s liberal wing worried about the implications of leaving out some biological boys who identify as girls and cannot compete effectively on boys’ teams.

“The numbers don’t talk about the human beings,” said Justice Sonia Sotomayor, an Obama appointee.

Republican court appointees said the girls and women being pushed off teams, missing the medal stand and losing scholarships also must be considered.

“What do you say about them? Are they bigots? Are they deluded into thinking they are subjected to unfair competition?” asked Justice Samuel A. Alito Jr., a George W. Bush appointee.

The justices heard more than three hours of oral arguments in cases out of Idaho and West Virginia, where state laws restrict the participation of transgender girls and women in girls’ sports. Twenty-five other states have similar laws.

Idaho and West Virginia sustained losses in lower courts.

At issue are the equal protection clause of the Constitution and Title IX, a civil rights law enacted in 1972 to bar sex discrimination in education. It was updated in 1974 to specifically open more opportunities for girls’ and women’s sports.

As they have in other contexts, such as congressional hearings, the advocates for transgender athletes struggled to define what sex means.

Joshua Block, attorney for Becky Pepper-Jackson, the girl who challenged West Virginia’s law, resisted the need for a definition. He said civil rights law doesn’t need to define what race is to bar discrimination based on race.

He suggested that the court look to outcomes rather than definitions.

“Our argument is that there’s a group of people who are assigned male at birth for whom being placed on the boys’ team is harmful. We happen to have a word for those people. It’s transgender girls,” Mr. Block said. “But I don’t think it means we’re elevating the gender identity to be the new definition of sex.”

Chief Justice John G. Roberts Jr. said he thought the law demanded more.

“You don’t think we should have an operating definition of sex?” said the chief justice, a George W. Bush appointee.

Justice Alito said that understanding what sex means is crucial to determining whether state laws are discriminatory on that basis, which is the standard in Title IX.

“How can we decide that question without knowing what sex means in Title IX?” he said.

The sides clashed over how many people are affected by the laws and how many people would need to be affected to rise to the level of discrimination that would undermine the laws.

Kathleen Hartnett, attorney for Lindsay Hecox, the college athlete who challenged Idaho’s law, said the treatments her client has undergone have reduced her testosterone levels to the point where she is competitive with girls.

“This is an important moment to just take a step back and say, is this law actually responding to a problem in a rational manner, or is it actually overreacting on the presumption that transgender women are categorically going to be strong athletes, when that’s not the case,” Ms. Hartnett said.

Justice Brett M. Kavanaugh, a Trump appointee, countered that several major organizations, including the International Olympic Committee and the National Collegiate Athletic Association, have concluded that allowing transgender women and girls to participate will “create unfairness” and undermine the growth of women’s sports.

“For the individual girl who does not make the team, or doesn’t get on the stand for the medal or doesn’t make all-league, there’s a harm there, and I think we can’t sweep that aside,” said Justice Kavanaugh, also known as “Coach K,” who coached his daughter’s Catholic Youth Organization basketball team at Blessed Sacrament Parish.

Idaho Solicitor General Alan Hurst said a United Nations report found that 600 women have been denied 890 medals in 29 sports in international competitions because of the participation of transgender athletes.

“That’s what we’re talking about. It’s a real threat,” Mr. Hurst said.

The Trump administration sided with the Republican-led states in the arguments.

“Denying a special accommodation to trans-identifying individuals does not discriminate on the basis of sex or gender identity or deny equal protection,” said Principal Deputy Solicitor General Hashim M. Mooppan. “All of that remains true even assuming a man could take drugs that eliminate his sex-based physiological advantages.”

The arguments were the latest in a string of cases that have come to the court to test the limits of the law and how it applies to the growth in the number of people who identify as transgender.

In a 2020 case, the Bostock ruling, the high court ruled that job discrimination against a transgender employee counted as sex discrimination under the law.

In June, the high court, in the Skrmetti case, allowed states to move ahead with laws that restrict medical treatments for children seeking to transition their sex.

Several Republican-appointed justices prodded the attorneys about how they could square the West Virginia and Idaho laws with the Bostock ruling. Among them was the chief justice, who was part of the majority in Bostock but seemed to tilt toward the states in Tuesday’s argument.

The author of the Bostock ruling was Justice Neil M. Gorsuch, a Trump appointee, who seemed somewhat sympathetic to the transgender athletes. He raised issues of past discrimination against transgender people, such as laws against cross-dressing.