Supreme Court battle over trans athletes is about so much more than sports

On Tuesday, the Supreme Court will hear a pair of cases brought by a transgender girl in West Virginia and a transgender woman in Idaho who argue they should be able to play on women’s school sports teams. On the surface, the cases invoke headline-grabbing controversies over the fairness of transgender women and girls competing against cisgender female athletes. But beneath that, they have the potential to produce sweeping consequences—either aiding or devastating trans people’s ability to fight back in court when state laws and school rules discriminate against them.

The science of trans women athletes is sparse and the subject of intense disputes. As I’ve reported before, it’s well established that their athletic performance declines after hormone therapy, but the data varies on whether this decline is enough to bring them in line with cisgender women.

A total of 29 states have nonetheless banned trans girls and women from K-12 through college from participating on women’s sports teams. Last year, in response to a Trump executive order called “Keeping Men Out of Women’s Sports,” the NCAA and the US Olympic and Paralympic Committee both changed their policies to categorically exclude trans women from the women’s division.

“We all know what it feels like when you can’t participate, and we know the pain that comes from being excluded and being told that you can’t play,” said ACLU senior counsel Joshua Block, one of the lawyers on the West Virginia case, at a press conference in early January. “Bans like West Virginia’s exclude transgender kids from everything athletics has to offer.”

But the states that brought the issue to the Supreme Court argue that cisgender women are inevitably at a physical disadvantage when they compete against transgender women, and as a result lose out on opportunities. “With increasing frequency, female athletes have been sidelined from their own teams, championship competitions, and winners’ podiums,” the state of Idaho wrote in its brief. (For context, NCAA president Charlie Baker testified in 2024 that he knew of fewer than 10 in 500,000 college athletes who were transgender.)

To understand the deeper issues at stake in the two cases, West Virginia v. B.P.J and Little v. Hecox, you have to look back six years to June 2020, when the court issued a landmark decision that has so far stood as the high-water mark for transgender rights. In Bostock v. Clayton County, the court ruled 6-3 that Title VII, the federal law banning sex discrimination in workplaces, also forbid discrimination against gay and trans workers. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” conservative justice Neil Gorsuch thundered in the majority opinion. After all, if a boss fires a male worker for marrying a man, but has no problem with a female worker marrying a man, the difference is their sex. Gorsuch applied the same logic to transgender people, using the example of male and female workers who both identify as women.

The Bostock ruling was a massive civil-rights victory for transgender people. Yet it only applied to workplaces. The justices declined to say whether other federal laws prohibiting sex discrimination—in health care or education, for instance—protect gay and trans people in those contexts, too. In subsequent decisions, they also sidestepped a related issue: Whether, under the Equal Protection Clause of the Constitution, judges should hold laws that treat trans people differently than cisgender people to a high legal bar, as they do for other protected classes.

Both these questions boil down to a simple one: Is discrimination against trans people legal? It’s a question that’s become more relevant than ever in the six years since Bostock, as a viciously effective anti-trans movement has taken hold of national politics. Right around the same time Bostock first arrived at the court in 2019, Christian conservative activists looking for a new wedge issue identified, through public polling, that voters could be swayed by messaging raising fears about trans women in women’s sports. Republican politicians in places like Idaho and Mississippi soon began passing state laws that banned trans girls from girls’ school sports teams, arguing that it was unfair and unsafe for them to compete with cisgender girls. Powerful conservative advocacy groups and donors invested in spokespeople like Riley Gaines, the former college swimmer who became an anti-trans activist after tying for fifth with a transgender woman, as I’ve previously chronicled.

Not only have their efforts successfully shifted public opinion, they helped pave the way for other kinds of anti-trans legislation—targeting trans rights in doctors’ offices, schools, bathrooms, and beyond. When President Donald Trump regained office, he promptly rolled out a suite of anti-trans executive orders and instructed federal agencies to no longer acknowledge the existence of transgender identity. Now the Supreme Court is poised to weigh in on whether this stance has legal merit.

While the two cases raise similar legal questions, they involve trans women who have been through different levels of medical transition. West Virginia v. B.P.J. centers on 15-year-old Becky Pepper-Jackson, a transgender runner who has lived fully as a girl since fourth grade and who received gender-affirming treatments that stopped her from going through a testosterone-driven puberty, according to her brief. In the spring of 2021, she was preparing to enter middle school in Bridgeport, West Virginia, and wanted to try out for the girls’ cross country team. But before she could, the state legislature passed a law banning trans girls from playing in girls’ school sports “where competitive skill or contact is involved.”

With the support of her mom and help from the ACLU, Pepper-Jackson sued, arguing that the new state law violated both Title IX—the 1973 federal law forbidding sex discrimination in education—and the Equal Protection Clause. In July 2021, the district court agreed to temporarily block West Virginia’s law while the case played out. Pepper-Jackson, now in high school, currently throws shotput discus on the girls’ track and field team. “I play for my school the same reason other kids on my track team do—to make friends, have fun and challenge myself,” she said in a statement the week before the hearing. “I’ve had my rights and my life debated by politicians who’ve never even met me.”

The other case, Little v. Hecox, involves 25-year-old Lindsay Hecox of Idaho, a transgender woman at Boise State University. She ran track in high school and hoped to try out for the Boise State women’s cross-country team her sophomore year of college, after a year of testosterone suppression, as NCAA rules at the time required. When the state legislature passed a blanket ban on trans women and girls participating in women’s athletics in 2020, Hecox sued. The district courts put the Idaho law on hold, and though Hecox didn’t make the women’s cross-country team, she later played women’s club soccer. (In a wrinkle, she asked the Supreme Court to throw out her part of the case, saying she is trying to focus on graduating. “I am afraid that if I continue my lawsuit, I will personally be subjected to harassment that will negatively impact my mental health, my safety, and my ability to graduate as soon as possible,” she wrote in a court filing. The justices will decide whether to throw out the case after Tuesday’s hearing.)

So what comes next for transgender athletes hoping to play on their school’s sports teams? It’s theoretically possible that the justices will decide the Idaho and West Virginia trans sports bans are a kind of sex discrimination banned by Title IX, using the same logic Gorsuch laid out on Bostock. (Recall, Gorsuch argued it impossible “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”) Such a ruling would lay the groundwork to overturn trans sports bans nationwide. And it would also help students challenge other anti-trans restrictions at school, from bathroom bans to pronoun rules to forced outing policies.

But even the ACLU admits this outcome is unlikely, given the conservative tilt of the court. “We know we have an uphill fight,” Block said. “Our hope is certainly that we prevail, but we also hope that regardless of what happens, this case isn’t successfully used as a tool to undermine the rights of transgender folks more generally, in areas far beyond just athletics.”

Block has good reason for pessimism. While five of the justices who sided with trans rights in Bostock still sit on the court, in the last year alone, the court has green-lit Trump’s trans military ban, a State Department rule prohibiting gender updates on passports, and a Tennessee law criminalizing doctors who treat trans minors with puberty blockers and hormone therapy. In the medical care case, Gorsuch—the author of Bostock, that groundbreaking ruling that the federal law banning workplace sex discrimination also shielded workers from anti-LGBTQ discrimination—remained totally silent during oral argument. In the decision, he joined the court’s other conservatives, who concluded that Tennessee’s law wasn’t a kind of sex discrimination, but rather treated people differently based on age and medical diagnosis. On Tuesday, he’ll have another chance to speak up about his reasoning.

In lieu of a favorable ruling, the best the ACLU and other trans-rights advocates can hope for is a kind of damage control: a narrow decision that recognizes sports as a special case in which there’s good reason to separate people by sex, but declines to weigh in on what Title IX means for trans students on other issues in school and reserves judgment on the constitutional standard judges should use to analyze laws that single out transgender people.

At worst, the justices could rule that anti-trans discrimination doesn’t warrant a higher level of scrutiny under the Equal Protection Clause. This kind of ruling would essentially tell judges to “rubber stamp” state laws that target transgender people. Jenny Pizer, the chief legal officer of the LGBTQ civil rights organization Lambda Legal, explained (ahead of the decision in the medical care case) that such a ruling would “declare open season to continue with these attacks on trans young folks and transgender people more broadly.”

On top of that, the court could say that Title IX simply doesn’t ban discrimination against trans students—which would likewise have far-reaching consequences. “If they are right that Bostock doesn’t apply to Title IX, a principal could expel someone for being trans, and it wouldn’t violate Title IX,” Block warns. “People could be bullied for being trans [and] receive no protection.”

Some anti-trans activists, including Gaines, hope the court will go even further and rule that Title IX requires states to ban trans girls from girls’ sports. The Trump administration has taken this position over the last year, with the education department investigating and punishing schools that let trans girls play on girls’ teams. But in September, the US solicitor general filed a brief asking the court not to decide this question.

The high schooler at the heart of the current case knows that the battle at the court on Tuesday is about much more than whether she can play track and field with her friends. “I know this case isn’t just about me or even just about sports,” Pepper-Jackson said in her statement ahead of Tuesday’s argument. “It’s just one part of a plan to push transgender people like me out of the public life entirely.”

“Someone has to speak up for what’s right and defend our freedoms,” she added. “That’s why I’m proud to stand up alongside my mother for what I believe and who I am, and I want other transgender kids to know they are not alone.”