The U.S. Supreme Court dove back into the culture wars full steam Thursday, agreeing to hear two cases in the fall — from Idaho and West Virginia — that test state laws banning transgender women and girls from participating in sports at publicly funded institutions.
Twenty-seven states have enacted these laws, with supporters saying they are needed to ensure fairness in athletic competition and to prevent transgender female athletes from having an unfair advantage. Opponents counter that the laws discriminate based on sex and thus that they violate both the Constitution's guarantee to equal treatment under law and Title IX, the federal law enacted in 1972 that mandates equal treatment in all athletic programs receiving federal funds.
That covers just about every public school in the country, from first grade through college.
The participation of transgender athletes in women's sports, though extremely rare, has become the newest flashpoint in the modern culture wars, especially after the Trump campaign last year made the participation of transgender people in many walks of life a huge issue.
Upon his taking office this year, Trump immediately issued executive orders to ban transgender women and girls from sports, in addition to ordering all transgender individuals out of the military, and requiring transgender individuals getting a passport to list their sex assigned at birth.
While prominent Democrats stayed mostly silent on this issue during the presidential campaign, several members of the party, including California Gov. Gavin Newsom have since said that they don't think that allowing transgender women in big-time sports is fair.
In fact, despite the brouhaha over the issue, there are in fact, few transgender women playing in major sports leagues. NCAA President Charlie Baker told a Senate panel last year that the number is fewer than 10. Moreover, the participation by transgender athletes is often uneventful in terms of the ultimate results, especially with younger children, and even older ones who play club sports. After all, the numbers of transgender people in the general population is under 1%.
But, when it gets to big-time competition in the NCAA and the Olympics, it gets a lot more complicated. In fact, one of the briefs filed in this case is signed by 102 female athletes and family members who endorse the state bans, saying it's not fair to have a person, assigned male at birth, with greater strength and speed, competing against a woman or girl.
Signatories to the brief include members of the LGBTQ community, like former tennis star Martina Navratilova, as well as other female Olympic champions.
Indeed, late last year, several big-time collegiate women's volleyball teams forfeited matches against San Jose State, refusing to play them because one of their players was a transgender woman.
Until Trump's executive order, all the big sports associations, including the NCAA, the U.S. Soccer Federation, and the U.S. Olympic Committee allowed most transgender women to compete, though they often required proof that the athletes were taking hormones or puberty blockers. And transgender athletes almost never prevailed or dominated in team or individual sports, until a few aced out women who otherwise would have won medals.
The Supreme Court's decision to hear the case testing the transgender sports ban follows the court's 6-to-3 decision in June that upheld state laws banning gender-affirming care for transgender minors. The decision in that case, including a concurring opinion by Justice Amy Coney Barrett, would seem to suggest that the odds will similarly favor the state bans in the sports case.
Indeed, just this week, the University of Pennsylvania agreed to the Trump administration's demands to end transgender women's participation in sports. The deal followed a government investigation of a transgender athlete at Penn, Lia Thomas, who became the first transgender woman to win an NCAA Division I title.
The cases that the court will hear next fall involve two laws, one from Idaho the other from West Virginia. The Idaho Fairness in Women's Sports Act prohibits transgender women from participating in women's sports from the beginning of primary school to university. Idaho argues that the law is necessary because of "inherent, psychological differences between males and females result in different athletic capabilities."
"Female athletes have become bystanders in their own sports," Idaho Attorney General Raúl Labrador argued in the state's application for Supreme Court review, "as male athletes who identify as female have taken the place of their female competitors—on the field and on the winners' podium."
A transgender woman, Lindsay Hecox, sued the state, arguing that the law unconstitutionally violated her rights. As a freshman student at Boise State University, Hecox had participated in the university's club sports teams and feared the law would stop her from trying out for the school's NCAA teams. In her brief to the Supreme Court, she said that in the end she didn't qualify for the NCAA teams because she was, in her words, "consistently running slower than her cisgender women competitors."
The second case, from West Virginia, was brought by Becky Pepper-Jackson, then 12 years old, who had no aspirations to playing big-time sports. Representing the family, the ACLU says that Becky receives "puberty-delaying treatment and estrogen hormone therapy," so she "has not experienced and will not experience endogenous puberty."
According to her lawyers, Becky was "welcomed by teammates and coaches" on the track and field team and "has not had any problems with children on other schools' teams."
The state, however, argues, "Female athletes have been demoralized, as they have been pushed further down the competitive ladder, out of tournaments, and off their teams."
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