The justices are debating an issue that has garnered national attention for years: whether states can ban transgender athletes from women’s sports teams.
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WASHINGTON – Becky Pepper Jackson was an elementary school student already convinced she was a girl, even though she was designated male at birth. That’s when the nation turned its attention to two transgender athletes.
The debate over whether a high school runner in Connecticut was given an unfair advantage has sparked a debate across the country, with more than half of states blocking transgender girls from competing on girls’ teams.
In Pepper Jackson’s home state of West Virginia, state officials said they reasonably expected that the community would soon hear “growing stories” of transgender athletes outperforming their competitors because they are bigger, faster and stronger.
In fact, Pepper Jackson’s lawyers say a law enacted in 2021 would have barred only one transgender girl who did not go through typical male puberty from participating on her school’s cross country or track teams.
“It is unusual to see such a disconnect between the actual operation of the law and its claims to justify it,” lawyers for the now 15-year-old told the Supreme Court ahead of oral arguments Jan. 13 in a case challenging the law.
President Trump: “This is a very humiliating act for women.”
While the two countries may disagree sharply about the phenomenon that West Virginia and 26 other states say they are grappling with, there is no doubt that the issue is garnering national attention. Pepper Jackson’s case and another student’s challenge to the Idaho ban are among the most important cases the high court will decide this year.
President Donald Trump has made opposition to transgender women competing on women’s teams a centerpiece of his 2024 campaign, and he expects this policy stance to be a key issue in this fall’s midterm elections as Republicans maintain control of Congress.
President Trump mocked transgender athletes in a recent speech to House Republicans, saying, “The whole thing is ridiculous…and very humiliating for women.”
Trump, who returned for a second term last year, took steps to immediately cut off federal funding from schools that allow transgender athletes to compete on women’s teams.
As part of an agreement with the U.S. Department of Education, the University of Pennsylvania last year stripped former swimmer Leah Thomas of her record as the first openly transgender athlete to win an NCAA Division I title.
The Justice Department received permission from the Supreme Court to help defend the laws in West Virginia and Idaho during oral arguments Tuesday.
Transgender athlete wants to quit trying
Lindsay Hecox, a transgender student at Boise State University who persuaded a lower court to temporarily block enforcement of Idaho’s ban, now wants to abandon her lawsuit.
In September, Mr. Hecox said he no longer played the sport and asked the Supreme Court to dismiss his challenge. Hecox said she worries that if the high-profile lawsuit continues, she will be harassed and have a harder time graduating.
“From the beginning of this case, I have been subject to negative public scrutiny from certain quarters,” Hecox told the court. “We have also observed a general increase in intolerance towards transgender people, especially transgender women who participate in sports.”
Idaho’s attorney general, who in legal filings calls Hecox “a male who identifies as a woman,” said it was too late for Hecox to back out. The court said it would not rule on Hecox’s request until after oral arguments.
2020 Supreme Court decision boosts transgender rights
Despite the headwinds, transgender rights advocates hope to build on a surprise victory in 2020, when a court sided with three employees who were fired for being gay or transgender.
The 6-3 majority ruled that when the Civil Rights Act of 1964 prohibited workplace discrimination on the basis of “sex,” it also included sexual orientation and gender identity.
Lawyers for Pepper Jackson argue that the same argument should apply to Title IX of the Civil Rights Act, which prohibits sex discrimination in educational programs.
But West Virginia says the situation is different. The state argues that while an employee’s gender is generally irrelevant in the workplace, biological differences are critical to fairness on the playing field.
“Gender affects athletic performance, but gender identity does not,” West Virginia’s attorneys said in a filing.
equal protection clause of the constitution
The justices will also discuss whether the Idaho and West Virginia laws violate the 14th Amendment’s guarantee that laws apply equally to similarly situated people.
State officials argue that because transgender women are not the same as babies assigned female at birth, it makes sense to treat them differently in athletic programs.
“We need to look at common sense,” said Idaho Attorney General Raul Labrador. “Ten years ago, if someone had told most Americans that the United States Supreme Court would be debating whether men should participate in women’s sports, everyone would have thought it was ridiculous.”
Lawyers for the transgender students say lower courts failed to adequately examine the facts at issue about what physical benefits remain for people like Hecox, who takes cross-sex hormones, and Pepper Jackson, who takes drugs to block puberty and the development of secondary sex characteristics, before the case was appealed to the high court.
Idaho and West Virginia argue that elected officials, not courts, should evaluate the evidence.
This is the path the Supreme Court took last year when a majority ruled that states could resolve the “intense scientific and policy debate” surrounding the issue of gender-affirming care for minors.
Still, David Super, a professor at Georgetown University Law Center, said the Supreme Court may agree with Pepper Jackson’s lawyers that more fact-finding is needed.
“Because we have expert testimony on both sides on the record, it would be very difficult to say, ‘Yes, this discrimination is justified because of unfair advantage,’ without having a lower court decide whether there is, in fact, evidence of unfair advantage,” he said.
But Kate Redburn, a transgender rights expert at Columbia Law School, said students face an uphill battle.
“The majority of the court does not seem particularly friendly to transgender rights cases,” she said. “I don’t think we’re too optimistic about the outcome, but there are some questions about the extent of the potential damage.”
Lower courts sided with transgender students
A lower court sided with the transgender students early in the case, ruling that they were exempt from the ban as challenges continued.
A federal judge in Idaho heard from experts on both sides about the effects of hormone therapy and determined that Hecox likely had no physical benefit. But the judge said a trial was needed to fully evaluate the scientific evidence.
Ms Hecox said her testosterone levels were typical of non-transgender women, and both her muscle mass and size (possibly giving her an advantage) were reduced because her testosterone was suppressed and she was taking estrogen.
Hecox’s lawyer said he played soccer and ran on his school’s club team before retiring from sports this year. She switched to “no-cut” sports because she wasn’t fast enough to make the NCAA cross country or track and field teams, she said.
“Plan to ban transgender people like me from public life”
Pepper Jackson has lived publicly as a girl since fourth grade and takes estrogen and drugs to delay puberty.
Still, West Virginia maintains that Pepper Jackson maintained a physical advantage, finishing third in last year’s state discus and eighth in the shot put.
Pepper Jackson said her athletic progress was the result of hard work and practice, and that her grades were “within the range” of non-transgender girls her age.
“I play in school for the same reasons as the other kids on the track and field team: to make friends, have fun, and challenge myself through practice and teamwork,” she said in a statement.
She also said the lawsuit is not just about sports, but “part of a plan to completely remove transgender people like me from public life.”
Non-transgender athletes speak out
The court also heard from students who competed against transgender athletes who claimed they lost opportunities and feared for their safety.
Serena Soule, who ran track and field in high school in Connecticut, said in her filing that she missed out on qualifying for the 55-meter race by two spots while the two “biological males” who sparked the national debate that led to the state’s ban qualified. Soule qualified in other events at the regional championships, but said he missed the opportunity to impress college scouts.
“She felt deep pain believing that her efforts and competitiveness as a female athlete were undermined by biologically male competitors who had an innate physiological advantage. That feeling was shared by other female athletes in her position,” Saul’s attorneys wrote in a filing supporting the state’s ban.
Trans athlete says her ‘moderate success’ was overrated
Andraya Yearwood, one of the two transgender athletes Soule complained about, said her “moderate success” as a runner was overemphasized by the media, spurring bans like those in states like Idaho and West Virginia.
Unlike the girls she competed against in high school, Yearwood told the court in her motion against the ban that she was not recruited to run track in college.
Still, she said competing on the track team gave her “confidence and purpose.”
“With all due respect,” her attorney wrote, “Ms. Yearwood asks the court to protect that opportunity for other transgender girls.”
