U.S. Supreme Court Upholds Transgender Athlete Ban

After months of anticipation, the U.S. Supreme Court issued its decision on transgender athletes’ rights in West Virginia v. B.P.J. and Little v. Hecox. The cases involve state laws that bar transgender girls and women from competing on sports teams corresponding with their gender identity. At issue were laws in West Virginia and Idaho that prohibit students assigned male at birth from participating on girls’ and women’s sports teams. The plaintiffs argued that transgender girls and women, who were taking puberty blockers and undergoing hormone replacement therapy (HRT), should be allowed to compete on girls and women’s athletic teams. They argued that the state statutes were unlawful under Title IX and the Equal Protection Clause of the U.S. Constitution.

While the Court’s decision was unanimous that the state laws do not violate Title IX, the justices sharply disagreed on how to apply the Equal Protection Clause of the U.S. Constitution to questions about transgender discrimination in sports.

Title IX was passed into law in 1972 and prohibits discrimination in federally-funded schools and education programs “on the basis of sex.” However, the Education Amendments Act of 1974, known as the Javits Amendment, allowed schools receiving funds under Title IX to establish “reasonable provisions considering the nature of particular sports.” This required schools to provide “equal athletic opportunity for members of both sexes” and authorized separate teams for boys and girls “where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”  After analyzing Title IX and the Javits Amendment, the Court unanimously agreed that the state laws can permit schools and education programs to maintain separate athletic teams for “members of each sex.”

The justices vehemently disagreed on how to apply the Equal Protection Clause to transgender athletes. The Equal Protection Clause provides that a state may not deny anyone the “equal protection of the laws.” When hearing cases involving constitutional rights, the Supreme Court can apply one of three kinds of analysis: strict scrutiny, intermediate scrutiny, or rational basis review. Strict scrutiny assumes that a law is invalid unless the government can prove that it is necessary to achieve a compelling state interest. Intermediate scrutiny is slightly less demanding and requires that a challenged law furthers an important government interest, and that the law itself is substantially related to that interest. Rational basis review, the most permissive standard, merely requires that a law is rationally related to a legitimate government interest, and tends to defer to government action.

When transgender rights cases make it to the Supreme Court, advocates are most often fighting for which kind of scrutiny these cases deserve. For example, in United States v. Skrmetti, the Court only subjected Tennessee’s law banning puberty blockers and HRT for transgender minors to rational basis review.

The majority opinion in West Virginia v. B.P.J., written by Justice Kavanaugh and joined by conservative Justices Roberts, Thomas, Alito, Gorsuch, and Barrett, held that states have an interest in separating student athletes based on sex. The Court applied intermediate scrutiny because it held that the law itself only discriminates based on a student’s biological sex and not someone’s transgender status. Because of this, states may require that transgender athletes compete on sports team based on their sex assigned at birth.

Applying this standard, the Court held that the state laws further an important government interest in “safety and competitive fairness” and that the laws are substantially related to that interest.

Justice Sotomayor, joined by Justices Kagan and Jackson, advocated for an “as applied” approach for transgender athletes. She argued that states must approach these classifications carefully to avoid binary outcomes and to accommodate for differences among transgender athletes. “Although it is true that sex classifications can be upheld even when they are not accurate in all applications,” Sotomayor wrote, “…it is inconsistent with intermediate scrutiny to dismiss…the existence of classification errors that [rely] on exactly the kind of overbroad generalizations based on sex the Equal Protection Clause is supposed to root out.”

Over 25 states have barred transgender women and girls from participating in girls’ sports. Legislators have been pushing for federal laws to discriminate against transgender athletes and to rewrite Title IX. And as these decisions are made, state laws targeting transgender athletes will continue to adversely affect girls and women participating in sports. “This is a heartbreaking ruling for our clients and transgender girls like them who’ve asked for nothing more than the same opportunities afforded to their peers,” said Joshua Block, senior counsel for the ACLU’s LGBTQ & HIV Rights Project. “The reality is that the equality of transgender women and girls takes nothing away from, and in fact promotes, the equality of all women and girls. We will continue to advance the fundamental principle that all young people deserve equal opportunity to thrive and succeed.”