The U.S. Supreme Court on Thursday plunged into the national debate over transgender rights in schools, agreeing to hear cases next term involving Idaho and West Virginia laws that prohibit transgender students from participating in girls’ or women’s school sports.
Both laws were blocked by separate federal appeals courts, and the states’ requests for review have been sitting at the Supreme Court for almost a year. Both cases raise the question of whether such laws, which 27 states now have on their books, violate the 14th Amendment’s equal-protection guarantee. One of the cases also implicates Title IX, and the court’s eventual decision potentially could affect other transgender issues in schools, such as restroom and locker room choices and name and pronoun policies.
The court was likely holding on to the appeals in Little v. Hecox (the Idaho case) and West Virginia v. B.P.J. while it decided United States v. Skrmetti, a case about whether Tennessee’s ban on certain gender-transition treatments for transgender minors violated the equal-protection clause. In June, the court ruled 6-3 to uphold the Tennessee law, holding that it was classified based on age and medical purpose but not sex.
In a concurrence in Skrmetti, Justice Amy Coney Barrett, joined by Justice Clarence Thomas, may hint at her leanings on these issues, saying that “transgender status implicates several other areas of legitimate regulatory policy,” including “eligibility for boys’ and girls’ sports teams.”
“Legislatures have many valid reasons to make policy in these areas, and so long as a statute is a rational means of pursuing a legitimate end, the Equal Protection Clause is satisfied,” Barrett said.
Idaho, West Virginia cases have been litigated for several years
Some legal observers expected the high court to order lower courts to reconsider the Idaho and West Virginia cases, as well as a third pending case from Arizona, in light of Skrmetti. The Arizona case also involves a transgender sports ban blocked by a federal appeals court.
The court took no action Thursday in the Arizona case, Petersen v. Doe. One possible explanation is that U.S. Solicitor General D. John Sauer represented Arizona lawmakers when that case was appealed last year and before he became the Trump administration’s top courtroom advocate this year. He would be recused from any Supreme Court participation in the Arizona case. But in the Idaho and West Virginia cases, Sauer will be able to advance the Trump administration’s strong views against transgender participation in female athletics.
The Idaho case involves the Fairness in Women’s Sports Act, a 2020 law that was the first in the nation barring transgender girls and women from participating in female sports teams. It was challenged in a suit brought by the American Civil Liberties Union on behalf of a female student who at the time was playing soccer on the girls’ team at Boise High School, as well as by Lindsay Hecox, a transgender track athlete who attended Boise State University.
After the case bounced around federal district courts and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, the appellate court last year upheld an injunction blocking the law as applied to at least one challenger, Hecox. The panel said the law likely violates the equal-protection clause.
The West Virginia case involves the 2021 Save Women’s Sports Act. After a district court issued an injunction in favor of a 12-year-old transgender student, Becky Pepper-Jackson, to participate in girls’ track in the spring of 2023, the state sought emergency review by the Supreme Court.
The high court declined to reinstate the law over the dissent of Justice Samuel A. Alito Jr., joined by Justice Thomas. Alito said at the very least the lower court should have explained its injunction better, and he said the case “concerns an important issue that this court is likely to be required to address in the near future.”
Last year, the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., upheld an injunction allowing Pepper-Jackson to participate under both the equal-protection clause and Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally funded schools. (The Idaho case involves only the equal-protection clause.)
Both Idaho and West Virginia appealed the adverse decisions last year. After the Supreme Court’s decision in Skrmetti, they filed new briefs urging the high court to take up the cases instead of remanding them for a fresh look by the lower courts.
“Whether designating sports teams based on biological sex violates the Equal Protection Clause is a critically important issue that has been roiling the lower courts, frustrating female student athletes, and confounding every level of government for years,” Idaho said in its brief. “A remand is unlikely to accomplish anything but more harm to women and girls.”
West Virginia said in its supplemental brief that Skrmetti did not address Title IX and that the transgender sports cases clearly present classifications based on sex, which the court held the Tennessee medical law did not. The state also cited President Donald Trump’s Feb. 5 executive order declaring that it is United States policy to “oppose male competitive participation in women’s sports.”
“That declaration leaves public schools in the 4th Circuit (and the 9th, too) between a rock and a hard place,” West Virginia said in the brief. “Should they follow an executive order that threatens all their funding—even funding unrelated to athletics? Or should they follow a court order that has not yet been applied to them?”
The supplemental briefs appear to have convinced at least four justices (the number required to grant review) to take up the athletics cases rather than remanding them.
States welcome Supreme Court review, while ACLU is concerned
West Virginia Attorney General John B. McCuskey, a Republican, praised the court’s decision to take up the two states’ cases.
“It’s a great day, as female athletes in West Virginia will have their voices heard,” he said in a statement.
Idaho Attorney General Raúl Labrador, a Republican, said he was “thrilled” with the court’s action.
“For too long, activists have worked to sideline women and girls in their own sports,” he said in a statement. “Men and women are biologically different, and we hope the court will allow states to end this injustice.”
The American Civil Liberties Union, which helps represent the transgender athletes in both the Idaho and West Virginia cases, expressed concern about the court agreeing to take up the states’ appeals.
“Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth,” Joshua Block, senior counsel for the ACLU’s LGBTQ & HIV project, said in a statement. “We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”
The Supreme Court will hear arguments sometime in the term that starts Oct. 6.
