Takeaways from transgender athlete cases at Supreme Court

The Supreme Court heard arguments Tuesday in two cases that grappled with questions about transgender athletes: Little v. Hecox of Idaho, and West Virginia v. BPJ, both cases focused on laws banning transgender girls and women from girls’ and women’s sports.

The arguments strayed from commonly debated points about transgender athletes: the importance of sports, their place in society, and existing science and recent policy history. Instead, lawyers and judges spent their time on complex legal arguments about the 14th Amendment and the Equal Protection Clause of Title IX.

“Debating legislation and debating sports are two different things, and I think they could have used a little more sports,” Idaho state representative and HB 500 author Barbara Ehardt told ESPN after the proceedings. “Some key points were raised including the judge’s timing [Brett] Kavanaugh said it’s a ‘zero-sum game.’ It’s important to understand that allowing a biological male takes away a girl’s opportunity and it infringes on the opportunities for everyone they play with.”

The arguments also focused on what opinion the Supreme Court might reach. Kavanaugh raised several times that states are divided on the issue, pointing to the fact that Idaho and West Virginia are among 27 states that have passed laws or created policies to prevent transgender girls and women from attending sororities and 23 states that have not passed that type of law. He asked how a blanket decision could affect those states. The petitioners in these cases believe that a blanket judgment is appropriate.

“This is a problem that requires a national solution because it cannot be that boys are allowed to become female athletes in California and Massachusetts,” John Bursh, senior counsel for the Alliance Defending Freedom, told reporters outside the Supreme Court after the session ended. ADF is a conservative law firm that consulted on Idaho’s HB 500 and several similar laws and supported the legal effort to defend those laws in the Supreme Court.

ACLU senior attorney Joshua Block told ESPN he expects the decision to be announced in the coming months to be as narrow as possible.

“There was considerable concern that this case could become a means of dismantling Title IX protections for everyone, far beyond the context of athletics,” Block said. “I’m hopeful based on that logic that that doesn’t happen here. I guess 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 entirely. An important question in Little v. Hecox is about indifference. Long before these arguments, Lindsay Hecox filed a motion to withdraw from the case with prejudice, citing warnings of negative attention from the case and promising not to play any sports sponsored by Boise State while remaining a student. The court said it would rule on that question after oral arguments. In West Virginia v. BPJ, Block argued that because there were unsettled disputes over the scientific facts of the case surrounding physical and athletic advantage, the court could send it back to lower courts for additional litigation and argument before making a decision that should be considered on how it might impact transgender athletes and the laws regulating them.

Transgender actor Elliot Page sat in the courtroom listening to arguments and reflecting on his experience growing up playing sports. “The case seems absolutely clear to me,” Page told ESPN. “I’m almost confused by what I just saw, but really grateful for everyone who is fighting for the community. We will be there for each other. We have always been here.”

Even before the legal arguments inside the Supreme Court could begin, protesters from both sides of the issue gathered outside the court on Tuesday morning.

Large sound systems and podiums – one decorated with blue and purple balloons and a sign that read, “Two Genders, One Truth” – were lined up on the court’s steps and divided down the middle by a series of metal fences.

During the day, lawyers for the opposing sides spoke together, creating a vigorous mix of rhetoric and repetitive conversation that was a far cry from the careful, measured questions and answers posed to the judges inside. There were also prayers, live music, and a performance by an all-queer cheerleading team.

Protestors calling for a ban on transgender athletes in women’s sports held signs that read, “Protect women’s sports” and “Our sports, our venues.” Peyton McNabb, a former North Carolina high school volleyball player and ambassador for Independent Women, said she is “very hopeful” the court will rule in her favor.

“It’s huge,” McNabb told ESPN. “This fight involves me and a lot of other women who have been fighting for this for years… even when no one was listening to us.”

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

“I think this is one data point in a long series of cases and issues and fights that are saying that trans people are everywhere, and they are especially in West Virginia,” Sparks told ESPN.

Protestors supporting the inclusion of transgender athletes in women’s sports held signs that read, “Our families are more than a game,” “Trans kids belong” and “Together we win: Fight for the T on the team.”

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

“My existence should not be political,” Tyrrell told ESPN. “I am who I am. Other people are not going to change that. The laws that are put in place will not change me. And trying to tell people that they are not who they know they are will not work.”