Supreme Court Appears Inclined to Allow States to Bar Transgender Athletes

The outcome of a pair of cases on Tuesday could affect laws in 27 states that prohibit transgender girls from joining girls’ and women’s sports teams.

The Supreme Court’s conservative majority on Tuesday seemed inclined to uphold a pair of state laws barring the participation of transgender athletes from girls’ and women’s sports teams.

The outcome of the cases from West Virginia and Idaho has implications for the 25 other states with similar laws, and for athletes who compete in school and collegiate sports around the country.

Becky Pepper-Jackson, a high school sophomore from West Virginia, and Lindsay Hecox, a college senior in Idaho, challenged the laws, which require that participation on sports teams for girls be based on “biological sex,” defined as a person’s sex assigned at birth.

During more than three hours of lively discussion, the justices grappled with concerns about fairness, scientific uncertainty and discrimination and seemed divided along ideological lines.

The three liberal justices, appearing to recognize the likely outcome, suggested through their questions that even if the laws are constitutional in most cases, perhaps the two transgender athletes at the heart of Tuesday’s arguments should be able to pursue their individual challenges.

Allowing their cases to be reviewed again by a lower court, the justices suggested, would give the athletes a chance to try to show that they themselves do not possess unfair competitive advantages even if some transgender girls do.

The conservative justices emphasized that federal law has long allowed separate sports teams for boys and girls to ensure fair competition and raised concerns about undermining the goals of Title IX, the civil rights statute that has fueled participation in women’s sports.

The Trump administration has targeted the participation of transgender athletes in sports and the rights of transgender people more broadly. President Trump in February directed agencies to withdraw federal funding from schools that allow transgender athletes in girls’ and women’s sports. The N.C.A.A. then announced it would bar transgender women from competing.

Until now, the Supreme Court has not formally addressed the legal issues surrounding transgender athletes. But in June, the court upheld a Tennessee law banning some medical treatments for transgender adolescents, dividing along ideological lines in its opinion. The decision was a major setback for transgender rights, after the court ruled in 2020 that a federal civil rights law protected gay and transgender employees from workplace discrimination.

In upholding Tennessee’s law last year, Chief Justice John G. Roberts Jr. cited the scientific and policy debates about gender transition treatments for minors and said such questions should be resolved by “the people, their elected representatives and the democratic process.”

Justice Brett M. Kavanaugh made a similar point on Tuesday, asking the lawyer for the Idaho athlete why the court would “jump in and try to constitutionalize a rule for the whole country while there’s still, as you say, uncertainty and debate, while there’s still strong interest in the other side.”

The chief justice was in the majority in the 2020 decision protecting transgender workers, which had been considered a major victory for transgender rights. But Tuesday, he suggested he does not believe it applies in the context of sports.

The athletes in both of Tuesday’s cases argue that the West Virginia and Idaho laws violate the Constitution’s guarantee of equal protection, which requires the government to have valid reasons for treating people differently.

Ms. Pepper-Jackson, who sued to join her middle school’s girls’ cross-country team when she was 11, also asserted that her state’s statute violates Title IX by denying her access to the school’s athletic program and treating her worse than her peers.

Ms. Pepper-Jackson, who listened intently to the arguments from the courtroom on Tuesday, has said she does not have an advantage over other girls because she did not go through male puberty and has been taking feminizing hormone therapy.

Justices Sonia Sotomayor and Elena Kagan, part of the court’s liberal wing, repeatedly suggested that the two athletes should have an opportunity to narrowly challenge the laws as they apply to their circumstances.

Laws can make distinctions based on sex, but “you have to have a reason for it, and one that matches your exclusion,” Justice Sotomayor said. “What you’re trying to say is: We don’t even look at the reason to see if it has a scientific basis.”

In response, Alan M. Hurst, Idaho’s solicitor general said: “We don’t look at the reason in this case to see whether there’s a scientific basis because no one disputes that there is a scientific basis for separate women’s sports.”

Justice Sotomayor responded: “Oh, but there is a dispute.”

In a twist, Ms. Hecox has tried to drop her case because she stopped playing women’s sports. In a court filing, her lawyers have said she wishes to focus on graduating from college “without the extraordinary pressures of this litigation and related public scrutiny.” The justices had deferred a decision about what to do with the case until after Tuesday’s argument.

The Trump administration and lawyers for the states said participation of transgender female athletes threatens to undermine five decades of progress since the passage of Title IX, which has led to major increases in opportunities and participation for women in sports.

Mr. Hurst and Michael R. Williams, the West Virginia solicitor general, told the justices that sex matters in sports.

“It correlates strongly with countless athletic advantages, like size, muscle mass, bone mass and heart and lung capacity,” Mr. Hurst said.

Hashim M. Mooppan, representing the Trump administration, said that both the 14th Amendment’s equal protection guarantee and Title IX, which prohibits discrimination based on sex, had long permitted sex-separated sports teams.

Chief Justice Roberts and Justice Samuel A. Alito Jr. pressed the attorneys about the definition of “sex,” and whether it could mean something other than “biological sex.”

Joshua Block, the attorney for Ms. Pepper-Jackson, said that Congress prohibited discrimination based on sex, and did not define it, just as it did not define “race” when it prohibited discrimination based on race. The court, he said, does not need to take a position on whether sex includes gender identity.

That did not appear to satisfy the justices.

When the word sex is “used as a statutory term, I’m not sure you have that kind of flexibility,” Chief Justice Roberts said.

Justice Kagan separately expressed concern about the court inadvertently crafting a decision that would prevent other states from choosing to include transgender athletes in women’s sports.

“What should we not say or what should we say to prevent that from happening?” she asked.

Throughout Tuesday’s argument, the justices confronted difficult questions about when boys and girls can be legally be treated differently. They raised a series of hypotheticals about whether boys and girls are different when it comes to their aptitude in all sorts of fields including calculus, chess and high school performance in general.

Some of the justices seemed eager to find a way to resolve the case without delving into these “similarly situated” arguments.

“I think it opens a huge can of worms that maybe we don’t need to get into here,” said Justice Amy Coney Barrett.

The justices also touched on the intense public interest in the outcome of the case. Many Olympians and other elite athletes are watching closely, with support for both sides.

“There are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them,” Justice Alito noted. He asked the lawyer for the Idaho athlete, “Are they bigots? Are they deluded in thinking that they are subjected to unfair competition?”

“I would never call anyone that,” Kathleen R. Hartnett, the attorney for Ms. Hecox, said. But she added that “you don’t legislate based on undifferentiated fears.” She also pointed to findings that showed that while transgender people have excelled in women’s sports, “they actually are few and far between.”

Justice Neil M. Gorsuch, who wrote the court’s 2020 decision on protections for gay and transgender workers, repeatedly asked about the history of discrimination against transgender people, including in laws passed by Congress and in a court ruling from the 1960s that he referred to as “perhaps not our finest hour.”

But his position on the matter was unclear from his questions.

By the end of the arguments, Mr. Block, an American Civil Liberties Union lawyer representing Ms. Pepper-Jackson, urged the justices to send her case back to the lower courts for a deeper review of the science and facts.

“This is an important issue. It may affect the whole country, and the court wants to get it right,” he said, telling the justices to avoid making a broad ruling.

Two appeals courts have sided with the students and blocked enforcement of the laws.

In the Idaho case, a federal judge said that promoting equal athletic opportunities for men and women was an important government interest, but that categorically barring Ms. Hecox did not advance those goals because of the medical treatment she receives. She is treated with testosterone suppression and estrogen.

In West Virginia, a district court judge, Joseph R. Goodwin, at first upheld the state law. He found that it did not violate the Constitution or Title IX, and concluded that “it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes.”

But a divided panel of the U.S. Court of Appeals for the Fourth Circuit said the law could not be enforced against Ms. Pepper-Jackson, specifically, in part because she said medication has prevented her from going through male puberty.

Outside the court on Tuesday, there were loud, large, dueling demonstrations — a sign of the importance of the case. A speaker rallying against the state bans asked the crowd: “If you love a trans person, will you scream?”

The crowd responded with cheers. A few hundred yards away, supporters of the laws said that they stood for “biology against ideology.”

Reporting was contributed by Aishvarya Kavi, Abbie VanSickle, Adam Liptak, Amy Harmon and Juliet Macur.

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