The current bans on transgender females playing in female sports competitions at the high school and college levels are based on the biological differences between males and females. Many states —and parents— fear their biological girls could be hurt by transgender females who have (in many cases) already developed greater heights, speed, and muscle strength than cisgender females.
But what about trans-females who have taken puberty blockers at an early age and have not developed physical traits that give them an advantage over other female athletes? What about more scholarly pursuits, where many girls vastly outperform boys? Should states ban girls from classes trying to bring boys up-to-speed academically. Should competitive chess teams be separated into boys and girls. What if a cisgender boy wanted to compete in track on a girls’ team because he was a poor athlete and did not have a chance to make the boys team?
These are some of the questions that were tossed around during the three-plus-hour-long oral argument before the U.S. Supreme Court this morning (Tuesday, January 13). At the conclusion, there seemed to be at least a fighting chance that the court will send both cases back to the lower courts to develop a more thorough factual record.
Several justices said they considered the record unclear or underdeveloped. They did not think Congress had clearly defined the word “sex” in 1972 when it passed Title IX of the Education Amendments Act. In that legislation, it said, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance….” Nearly all secondary schools and about 90 percent of colleges and universities receive federal funding for various purposes.
Two years later, Congress added an amendment introduced by Senator Jacob Javits that allowed for “reasonable provisions” in the context of “particular sports.” And in 2020, the U.S. Supreme Court held, in Bostock v. Clayton County, that “on the basis of sex” in Title VII of the Civil Rights Act, includes gender identity and sexual orientation.
The consequences of a ruling in the cases before the court today could have far-reaching consequences.
The two cases, discussed separately before the court, involved two transgender female athletes: a teenager in West Virginia and a college student in Idaho. The teenager, whose name, Becky Pepper-Jackson, has been widely reported, is 15. She started taking puberty blocking medications in elementary school and has never gone through the bodily changes that males go through during puberty. Thus, her attorneys argue, she does not have any biological advantage over cisgender females. The college student, 24-year-old Lindsay Hecox, began experiencing gender dysphoria in elementary school but did not begin to take drugs to suppress testosterone until her first year in college. The state of Idaho passed a blanket ban against trans-female athletes in school just as she was preparing to try out for her school’s soccer and track-and-field teams.
The three hours of arguments produced many memorable quotes. Idaho Solicitor General Alan Hurst told the court, “Sex is what matters in sports.”
Later, the attorney arguing for Hecox noted that in 1967, the Supreme Court ruled in Boutilier v. US that, although the 1952 Immigration and Nationality Act was used to deport a Canadian gay man, the Act did not mention homosexuality at all. The law said the U.S. could deport anyone “afflicted with psychopathic personality.” But the Supreme Court ruled that “Congress used the phrase ‘psychopathic personality’ not in the clinical sense, but to effectuate its purpose to exclude from entry all homosexuals and other sex perverts.”
“Not our finest hour,” quipped Justice Neil Gorsuch.
The ACLU and Lambda Legal brought the lawsuits challenging the bans. They said the bans, which exist in half the states, violate the Equal Protection Clause in the U.S. Constitution and Title IX under the federal Education Amendments of 1972. Title IX prohibits discrimination on the basis of sex at schools that receive any federal funding.
The ACLU says the Supreme Court could deliver a ruling that goes beyond sports and implicates the rights of transgender people in other arenas.