Image Source: Ian Millhiser
Key Takeaways
- The Supreme Court is likely to rule against trans women playing on women’s sports teams in the cases of Little v. Hecox and West Virginia v. B.P.J.
- The Court’s past decisions on trans rights, such as Bostock v. Clayton County, do not apply to sports due to sex-segregated teams.
- The plaintiffs in Hecox and B.P.J. argue that trans women with low testosterone levels do not have a competitive advantage over cisgender women.
- The Court may not recognize trans people as a protected class under the Constitution, making it difficult for trans athletes to prevail.
- Even if the Court recognizes trans people as a protected class, the plaintiffs must still overcome the hurdle of allowing states to segregate sports teams based on sex assigned at birth.
Introduction to the Issue
The question of whether transgender athletes have the right to play school-sponsored sports has always been a difficult legal issue facing trans advocates. As the article states, "The question of whether trans women may play high school or college sports has always been the most difficult legal issue facing trans rights advocates." The Supreme Court’s trans rights precedents are particularly ill-suited for plaintiffs challenging state laws prohibiting trans women from playing on women’s sports teams. The politics of this issue are also unfavorable for trans people, with the Court dominated by Republicans who have already voted to ban trans youth from receiving gender-affirming medical care.
The Bostock Decision
To understand why trans advocates face a steep hill to prevail in Hecox or B.P.J., it’s helpful to be familiar with Bostock v. Clayton County (2020), the one major victory the Court has given transgender Americans. In Bostock, the Court held that a federal law which bars employment discrimination "on the basis of sex" prevents workplace discrimination targeting LGBTQ employees. However, as the article notes, "sex discrimination is allowed in sports — teams are typically gender-segregated — so Bostock doesn’t apply there." The Court’s rationale in Bostock was that "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." However, this rationale does not apply to sports, where sex-segregated teams are permitted.
The Cases of Hecox and B.P.J.
The plaintiffs in Hecox and B.P.J. argue that trans women with low testosterone levels do not have a competitive advantage over cisgender women. As the article states, "The plaintiff in B.P.J., who is identified only by her initials because of her young age, is a high school track-and-field athlete. According to her brief, she ‘transitioned early in life’ and ‘has received puberty-delaying medication and gender-affirming estrogen,’ and thus has never gone through male puberty." The plaintiff in Hecox, Lindsay Hecox, is a former college athlete who "is treated with both testosterone suppression and estrogen" and who says she "has circulating testosterone levels typical of cisgender women." The plaintiffs’ lawyers argue that this subset of trans women enjoys "no athletic advantage" over cis women.
The Battle of the Professors
The state of Idaho, the defendant in Hecox, spends a significant amount of its brief doubting the factual claim that trans women with low testosterone levels do not have a competitive advantage. The state relies largely on statements by Gregory Brown, a professor of exercise science, while the plaintiffs rely largely on testimony by professor Joshua Safer, an endocrinologist. As the article notes, "The trial courts in Hecox and B.P.J. deemed Safer’s testimony to be more credible than Brown’s." However, the Supreme Court is unlikely to defer to the lower courts’ factual findings, and may instead make up its own facts to justify ruling in favor of the state.
Heightened Scrutiny
To prevail in Hecox or B.P.J., the plaintiffs must show that they are protected from discrimination because they are transgender — and not just because they are men or women. The lawyers representing the plaintiffs argue that discrimination on the basis of gender identity should be subject to heightened scrutiny. As the article states, "The lawyers representing the plaintiffs in Hecox and B.P.J. make a strong argument that discrimination on the basis of gender identity should be subject to heightened scrutiny." The plaintiffs’ lawyers list several historical laws that targeted trans people, and argue that someone’s gender identity bears little relationship to their ability to contribute to society.
The Outcome
Realistically, trans athletes should expect a rough ride in the Supreme Court. As the article notes, "Many of the Court’s current members have already indicated that they reject the pro-trans arguments in Hecox and B.P.J." Even if the Court recognizes trans people as a protected class, the plaintiffs must still overcome the hurdle of allowing states to segregate sports teams based on sex assigned at birth. As the article states, "The law typically permits schools to segregate sports teams based on students’ sex assigned at birth, so why should a trans athlete be treated differently than a cis athlete with similar athletic ability?" The outcome of these cases is uncertain, but one thing is clear: the fate of trans athletes hangs in the balance.
https://www.vox.com/politics/473688/supreme-court-transgender-sports-little-hecox-bpj-west-virginia
