Washington — The Supreme Court on Thursday said it will consider whether states can prohibit transgender athletes from participating in girls’ and women’s sports, setting up a high-profile clash that could have far-reaching implications across the country.
The justices agreed to decide whether laws from Idaho and West Virginia that prevent transgender girls and women from competing in female athletics violate the Constitution’s Equal Protection Clause and Title IX. The cases involving transgender rights come after the court’s conservative majority upheld a ban on gender-affirming care for transgender minors last month.
Beginning in its next term in October, the Supreme Court will review lower court decisions in favor of transgender athletes from Idaho and West Virginia who challenged the bans in their respective states. The Idaho case involves the 14th Amendment’s Equal Protection Clause, while the dispute over West Virginia’s law involves the Constitution’s guarantee of equal protection and Title IX, the landmark civil rights law that prohibits sex-based discrimination in education.
The issue of transgender athletes participating in girls’ and women’s sports has exploded at the state level in recent years. Idaho was the first state to pass a law prohibiting transgender athletes from participating in women and girls’ sports, and two dozen have since followed suit. Roughly half of the states have also passed laws that bar certain medical treatments for minors experiencing gender dysphoria.
At the federal level, President Trump signed an executive order in February that aimed to ban transgender girls and women from competing on sports teams that match their gender identity. The president’s order directs that under Title IX, educational institutions that receive federal funds cannot “deny women an equal opportunity to participate in sports.”
On the heels of Mr. Trump’s executive order, the NCAA announced it had updated its participation policy for transgender athletes to bar student-athletes who were assigned male at birth from competing on women’s teams. On Wednesday, the University of Pennsylvania said it would no longer allow transgender athletes to participate in women’s sports as part of an agreement to resolve Title IX violations. The Trump administration had opened an investigation into the school after it awarded Lia Thomas, a transgender swimmer, a spot on the women’s swimming team.
“Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth,” said Joshua Block of the ACLU, which is representing the athletes in the cases, Lindsay Hecox and Becky Pepper-Jackson. “We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”
West Virginia Attorney General JB McCuskey said he is confident the Supreme Court will uphold his state’s law.
“It’s a great day, as female athletes in West Virginia will have their voices heard,” he said in a statement. “The people of West Virginia know that it’s unfair to let male athletes compete against women; that’s why we passed this commonsense law preserving women’s sports for women.”
Idaho’s law
Idaho’s measure, called the Fairness in Women’s Sports Act, requires athletic teams or sports to be designated based on biological sex, and says those for women or girls “shall not be open to students of the male sex.” If there is any dispute about a student’s sex, the law says schools must ask for a health examination and consent form verifying the student’s biological sex.
After Idaho’s GOP-led legislature passed the legislation, Hecox, a transgender woman who was attending Boise State University, sued, arguing the law violates Title IX and the Constitution’s promise of equal protection under the law. Hecox was a freshman when she filed her lawsuit in April 2020, and she said she wanted to try out for the women’s track and cross-country teams as a sophomore, but couldn’t do so because of Idaho’s ban.
Hecox has received treatment for gender dysphoria since 2019, including testosterone suppression and estrogen, according to court papers.
A federal district court blocked enforcement of Idaho’s law, finding that Hecox was likely to succeed in her challenge. U.S. District Judge David Nye wrote in August 2020 that the ban “on its face discriminates between cisgender athletes, who may compete on athletic teams consistent with their gender identity, and transgender women athletes, who may not compete on athletic teams consistent with their gender identity.”
Additionally, Nye found the measure discriminates against transgender women by categorically excluding them from female sports and subjects participants in female athletics to a “potentially invasive” process for verifying a student’s biological sex.
As a result of the district court’s order, Hecox tried out for the women’s NCAA running teams at Boise State, but did not qualify. She instead participated in women’s club soccer and running at the university, according to court filings.
The U.S. Court of Appeals for the 9th Circuit upheld the district court’s injunction as applied to Hecox, finding that Idaho’s ban targets all transgender girls and women regardless of their testosterone levels or whether they have received certain gender-transition treatments.
The appeals court said that the record in the case doesn’t back “the conclusion that all transgender women, including those like Lindsay who receive hormone therapy, have a physiological advantage over cisgender women.”
The West Virginia law
West Virginia’s legislature passed its law, the Save Women’s Sports Act, in 2021, which restricts participation on girls’ sports teams based on biological sex, defined as a student’s “reproductive biology and genetics at birth.” The law prohibits transgender athletes from participating in girls’ sports at every level, including club and intramural activities.
State officials have argued the law aims to protect equality in girls’ sports, and it does not prevent anyone from trying out for men’s, boys’ or co-ed teams.
“It is only when students are playing skill and contact sports — where biological sex has a direct effect— that biological males (again, however they might identify) cannot compete with females,” they wrote in a Supreme Court filing.
Before the law took effect, Pepper-Jackson, who was then 11 years old, challenged the measure, arguing it is unconstitutional and violates Title IX, the landmark civil rights law that prohibits sex-based discrimination in schools or programs that receive federal funding.
Pepper-Jackson, now a teenager, was born male but began identifying as female at “an early age,” lawyers wrote in court papers. She has received puberty-delaying treatment and estrogen hormone therapy. When Pepper-Jackson was a rising sixth grader and preparing to begin middle school, she was informed by her school’s principal that she could not participate in girls’ school sports because of West Virginia’s law.
A federal judge in July 2022 temporarily blocked West Virginia from enforcing the law only against Pepper-Jackson, ruling its application would likely violate Title IX and the Constitution. As a result of the injunction, she was able to participate in her middle school girls’ cross-country and track-and-field teams.
In early 2023, U.S. District judge Joseph Goodwin ruled for the state and upheld the law. He also lifted the earlier injunction that had blocked enforcement against Pepper-Jackson.
“A transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males. And biological males generally outperform females athletically,” he wrote. “The state is permitted to legislate sports rules on this basis because sex, and the physical characteristics that flow from it, are substantially related to athletic performance and fairness in sports.”
Pepper-Jackson appealed and asked the U.S. Court of Appeals for the 4th Circuit for emergency relief, which would’ve allowed her to participate in the spring 2023 track-and-field season. The appeals court granted her request, after which West Virginia officials sought the Supreme Court’s intervention. The high court then denied the state’s bid to allow it to enforce the law against Pepper-Jackson, with Justices Clarence Thomas and Samuel Alito dissenting.
A divided 4th Circuit issued a ruling on the merits of the case in April 2024, finding West Virginia’s law violated Title IX by discriminating against Pepper-Jackson on the basis of sex.
Citing Pepper-Jackson’s years-long identity as a girl, social transition, name change, updated birth certificate listing her as a female and medical treatments, the 4th Circuit’s majority said offering her a “‘choice’ between not participating in sports and participating only on boys teams is no real choice at all.”
“By participating on boys teams, B.P.J. would be sharing the field with boys who are larger, stronger, and faster than her because of the elevated levels of circulating testosterone she lacks,” Judge Toby Heytens wrote. “The act thus exposes B.P.J. to the very harms Title IX is meant to prevent by effectively ‘exclud[ing]’ her from ‘participation in’ all non-coed sports entirely.”
But in their appeal to the Supreme Court, West Virginia officials argued that the 4th Circuit’s decision threatens Title IX’s promise of equal athletic opportunity for women and girls.
“In the Fourth Circuit, females must now compete against biological males — and all the physiological advantages they possess — in all athletic events,” lawyers for the state wrote.
Lawyers for Pepper-Jackson argued it’s too soon for the Supreme Court to weigh in, as the 4th Circuit’s decision is the first and only from a federal appeals court to address Title IX’s protections for transgender athletes.