Supreme Court takes up transgender athlete cases

The Supreme Court heard arguments Tuesday in two cases that grappled with questions about transgender athletes: Little v. Hecox out of Idaho, and West Virginia v. B.P.J. Both cases centered on laws barring transgender girls and women from girls’ and women’s sports.

The arguments strayed from the points typically debated about transgender athletes: the importance of sports, their place in society, and the existing science and recent policy history. Instead, the lawyers and justices spent their time on complex legal arguments about the equal protection clause of the 14th Amendment and Title IX.

«Arguing the law and arguing sports are two different things, and I think they could have used a little more sports,» Barbara Ehardt, an Idaho state representative and author of HB 500, told ESPN after the proceedings. «There were a couple of key points made, including when Justice [Brett] Kavanaugh said it’s a ‘zero-sum game.’ It’s important to recognize that allowing a biological male takes away the opportunity of a gal and it infringes on the opportunities of everybody they play.»

Arguments also focused on the scope of any opinion the Supreme Court could reach. Kavanaugh brought up multiple times that the states are divided on this issue, pointing to the fact that Idaho and West Virginia are among 27 states that have passed legislation or have policies barring transgender girls and women from participating in the women’s category and that 23 states have not passed that type of legislation. He asked how a broad ruling could affect those states. The petitioners in these cases believe a broad ruling is appropriate.

«This is a problem that needs a national solution because it can’t be that boys should be allowed to be female athletes in California and Massachusetts,» Alliance Defending Freedom senior counsel John Bursch said to reporters outside of the Supreme Court after the session concluded. ADF is a conservative legal firm that consulted on Idaho’s HB 500 and many similar pieces of legislation and supported the legal effort to defend those laws at the Supreme Court.

ACLU senior counsel Joshua Block told ESPN he hopes the decision, which will be announced in the coming months, is as narrow as possible.

«There was a lot of concern that this case could be a vehicle for dismantling Title IX protections for everyone, going far beyond the context of athletics,» Block said. «I’m hopeful based on the argument that that’s not what happens here. I think I’m hopeful that whatever happens, it’s a narrow decision.»

Something to watch: Both cases present an opportunity for the court to sidestep the issue of transgender athlete eligibility altogether. A key question in Little v. Hecox is about mootness. Well before these arguments, Lindsay Hecox filed a motion to withdraw from the case with prejudice, citing her wariness of the negative attention from this case and promising to not pursue playing any sports sponsored by Boise State while she remains a student. The court said it would rule on that question following oral arguments. In West Virginia v. B.P.J., Block argued that because there were unsettled disputes over the scientific facts of the case around physiological and athletic advantage, the court could send it back to the lower courts for additional litigation and argument before making a decision that could impact how transgender athletes and the laws regulating them should be considered.

Transgender actor Elliot Page sat in the courtroom listening to the arguments, reflecting on his experience growing up playing sports. «To me, the case seems so clear,» Page said to ESPN. «I’m leaving almost confused at what I just witnessed, but really grateful for everyone who’s fighting for the community. We’re going to continue to be there for each other. We’ve always been here.»

Even before the legal debate began inside the Supreme Court, demonstrators on both sides of the issue gathered outside the court early Tuesday morning.

Large sound systems and podiums — one decorated with blue and purple balloons and a sign that said, «Two sexes, one truth» — lined the court’s stairs and were divided in the middle by a series of metal fences.

Over the course of the day, advocates on opposing sides spoke simultaneously, creating a loud mix of rhetoric and oft-repeated talking points, a stark departure from the careful, measured questions and answers before the justices inside. There were also prayers, live music and a performance by an all-queer cheerleading team.

Demonstrators for bans on transgender athletes in women’s sports carried signs that said, «Protect women’s sports» and «Our sports, our spaces.» Payton McNabb, a former North Carolina high school volleyball player and an ambassador for Independent Women, said she was «very hopeful» of a ruling from the court in their favor.

«This is huge,» McNabb told ESPN. «There’s been myself and so many women in this fight that have been fighting for this for years now … even when no one was listening to us.»

Aubrey Sparks, the legal director of ACLU of West Virginia, one of the groups representing transgender athlete Becky Pepper-Jackson, said that wins for rights don’t happen overnight or with one case.

«I think that this is one data point in a longer line of cases and issues and fights that are saying that trans people do belong everywhere, and they belong in West Virginia specifically,» Sparks told ESPN.

Demonstrators supporting transgender athlete inclusion in women’s sports held signs reading, «Our families are more than a game,» «Trans kids belong» and «Together we win: Fight for the T in Team.»

Parker Tirrell, 17, traveled from New Hampshire, where she is challenging the state’s law barring transgender girls from girls’ sports and President Donald Trump’s executive order. She is a soccer player competing under an injunction, like Pepper-Jackson, and her case will be informed by the Supreme Court’s decision.

«My existence shouldn’t be political,» Tirrell told ESPN. «I am who I am. Other people aren’t going to change that. The laws that go through aren’t going to change who I am. And trying to tell people that they’re not who they know they are is not going to work.»