Ketanji Brown Jackson Was One of the Few Justices to Recognize the Trans Sports Cases Are About Real People |
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When the Supreme Court heard arguments in Little v. Hecox and West Virginia v. B.P.J. on Tuesday, it confronted two cases that appear, at first glance, to raise the same question. Both involve state laws that bar transgender girls from participating on girls’ school sports teams. Both feature plaintiffs who argue that these laws violate the Constitution and, in the West Virginia case, Title IX. And both arrive at the court after lower courts treated transgender status as legally relevant to a discrimination inquiry. At oral argument, the justices did not approach the cases as moral disputes about inclusion or fairness in women’s sports. The questions largely avoided normative judgments altogether, focusing instead more narrowly on doctrine, statutory structure, and the limits of judicial review. That approach could produce a formally narrow decision that nevertheless risks foreclosing meaningful relief for transgender individuals whose discrimination claims would otherwise warrant serious judicial consideration.
Hecox arises from Idaho’s Fairness in Women’s Sports Act, enacted in 2020. The statute categorically bars transgender women and girls from participating on women’s and girls’ sports teams at any level, from elementary school through college. Before the law’s enactment, Idaho permitted transgender girls to compete on girls’ teams under policies that required hormone suppression. Lindsay Hecox, a transgender woman and college student, challenged the law after it foreclosed her ability to compete on women’s teams consistent with her gender identity. The district court preliminarily blocked enforcement of the law as applied to Hecox, concluding that she was likely to succeed on her equal protection claims. The 9th Circuit affirmed, holding that the law classified on the basis of sex and transgender status and failed heightened scrutiny because it rested on overbroad generalizations rather than evidence tailored to Hecox’s circumstances.
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Idaho sought review, presenting the court with two threshold issues and one merits question. The first was mootness. Idaho argued that because Hecox is no longer competing under the law, the case no longer presents a live controversy. The second was the standard of review. Idaho insisted that the law does not classify based on transgender status and should be reviewed, at most, under the lower threshold of rational basis scrutiny. And even if intermediate scrutiny applies, the state argued, the law substantially advances its interest in protecting athletic opportunities for female athletes.
B.P.J. reaches the court from a different posture. West Virginia enacted a similar sports ban, which B.P.J., a transgender middle school student, challenged under both the equal protection clause and Title IX. Unlike Hecox, B.P.J.........