Supreme Court weighs question of trans women in school sports : NPR

The Supreme Court dives back into the culture wars full steam on Tuesday with oral arguments in two cases that test laws banning transgender girls and women from participating in women’s sports at publicly funded schools.

Transgender participation in sports, though extremely rare, has become the newest flashpoint in both politics and law. Especially in 2024 when the Trump presidential campaign aired attack ads on the subject more than 15,000 times, putting Democrats decidedly on defense.  Those numbers were compiled by the ad tracking firm AdImpact. 

To date, 27 states have enacted laws barring transgender participation in sports. Supporters say the laws are needed to ensure fairness in athletic competition and to prevent athletes whose assigned sex at birth was male from having an unfair advantage in women’s sports. Opponents of these laws say they discriminate based on sex, in violation of both federal law and the constitution’s guarantee to equal protection of the law.

For athletes at every level, the issue is deeply personal, with tennis greats Billie Jean King and Martina Navratilova on opposing sides, along with hundreds of other high-profile athletes.

Tuesdays test cases are factually very different. One involves an Idaho college student barred by state law from trying out for the Boise State University varsity women’s track team. The other case was brought by a West Virginia middle school student barred by state law from competing in school sports.

The case from West Virginia

Now in high school, Becky Pepper Jackson is apparently the only openly trans girl in the state seeking to play school sports.

Though her assigned sex at birth was male, she says she knew from a very young age that she was a girl, and by third grade she not only presented herself as a girl, she joined the girls running team in school.

“They were all very supportive because, I mean, we were in the summer of third grade,” she says. “It was just about having fun.”

Though she loved running, Becky finished dead last most of the time and when she was in sixth grade, her coach pulled her aside to tell her she was simply too slow to make the middle school cross country team.

Instead, her coach said she should try a different sport and pointed her toward shot put and discus.

Becky took the advice, joining the shot put and discus throwers. And she worked hard to improve.

“Eighth grade is when I really started to get good because I spent all of the off-seasons from seventh grade and in eighth grade, lifting and working out, trying to get better,” she says.

And she started winning ribbons.

Not fair, says West Virginia Attorney General John McCuskey.  

“Biological differences between men and women matter on the field,” he says.

And while Becky’s case began when she was in fifth grade, as McCuskey observes, “By the time she was a high school freshman, at age 13 or 14,” she “is the third best shot putter in the entire state. And that includes 15, 16, and 17-year-olds, and 18-year-olds.”

The same kinds of physical advantages, he says, are clear in other sports worldwide.

“Every single women’s swimming world record, all of them, have been beaten by a boy who’s 16 or younger,” he says.  

But Becky’s lawyer, Josh Block of the ACLU, counters that there are always winners and losers in sports, as well as special advantages.

‘Why is Michael Phelps so good? because he has genetic mutations that give him larger arm spans,” Block says. “All the really elite athletes have  physical attributes that make them very different from a typical person.”

Broader implications?

While Block concedes there is a difference between intramural sports and varsity sports at the college level, he sees this case as potentially punitive for trans individuals overall.

Although the Supreme Court in 2020 ruled that the federal law barring sex discrimination in employment extends to gay and trans employees, the court more recently has upheld state laws that ban hormone and other treatments for minors suffering from gender dysphoria; it has left in place President Trump’s order to rid the military of trans individuals; and it has also required passport applicants to list only their assigned sex at birth.  

Block acknowledges that advocates for trans rights are on the defensive, and not just in Republican-run states.

“The elephant in the room,” he says, is Trump and his executive orders.

“The ground is shifting from protecting folks in red states to protecting folks in blue states from the federal government,” Block says. “You have waiting in the wings the Trump Department of Justice that is suing states, withholding funds in order to bully states into banning transgender girls even if it conflicts with state law.”

Block’s fear is that the Supreme Court will ultimately rule that transgender rights generally are subject to the lowest level of legal scrutiny—something called rational basis, which essentially means that a state law is presumed valid as long as the state legislature has some rational reason—pretty much any reason— for its law. And he argues that using that test, trans kids could arbitrarily be kicked out of school.

That’s “ridiculous,” says West Virginia Attorney General McCuskey. This case, he says, is about one thing only…sports. And sports are “unique.”

“That’s my entire argument,” he says. “This isn’t a fight about pronouns. I couldn’t care less what a 15-year-old wants to be called. That’s irrelevant, What’s relevant is that men are bigger, faster, and stronger than women. And competitive athletics are incredibly important in our society to the growth of young women. And we believe that space in this instance should be reserved for biological girls.”

Not everyone agrees with that limited objective.

“It’s just a lie that a man can be a woman,” says John Bursch, senior counsel and vice president of the Alliance Defending Freedom, a powerful conservative group that is representing the state of Idaho in the second case before the court on Tuesday.  

“This question is actually bigger than sports,” he says. “It’s about whether those who support the gender ideology movement are going to be allowed to continue harming children, women and adults.”

The Supreme Court has lots of choices about the path it will take in these cases, and whether it will go big or small, observes William and Mary law professor Jonathan Adler. “There’s a real question whether the court will confine what it says to the specific context of sports where there’s always some inherent line-drawing that may seem arbitrary, or whether it’s going to do something more broad,” he says. “And the broader the court goes, certainly the more significant these cases are.”