By Libba Galloway
Laws and sports organization policies in the United States regarding transgender participation in sports have had a roller coaster-like trajectory: up-hills and down-hills, twists and turns, uncertainty as to what comes next. Starting in 2005, sports organizations began forging paths for transgender participation in sports; ten years later, many of these same organizations began restricting the ability of transgender females to play female sports; since 2020, at least 25 states have banned transgender females from playing female sports, while other states have voted down similar laws; and the majority of courts which have considered these bans have held that they violate the law.
The different laws and judicial decisions have led to uncertainty for transgender athletes and sports organizations, and many believe that the best route for alleviating this uncertainty is for the Supreme Court to weigh in. On July 3, the Court agreed to do just that, granting certiorari in two cases challenging state laws banning transgender females from playing female sports.
The Cases
The first of the cases is Hecox v. Little, 79 F.4th 1009 (9th Cir. 2023). The case arose in 2020 after Idaho enacted a law barring transgender females from participating in public school female sports at all levels of competition. The law also provides a sex verification process, whereby anyone may dispute the sex of any student participating in female sports and require them to undergo intrusive procedures. Lindsey Hecox, a transgender woman who sought to join Boise State University’s cross-country team, sued Governor Bradley Little, arguing that this law violates the Equal Protection Clause of the U.S. Constitution’s 14th Amendment. The Ninth Circuit upheld the District Court’s preliminary injunction against enforcement of the law, acknowledging that it categorically bans all transgender females from competing in female sports and subjects only students participating in female sports to the sex verification process.
The second case, B.P.J. v. W.V. Bd. of Educ., 98 F.4th 542 (4th Cir. 2024), involves a West Virginia law adopted in 2021 that provides that female sports shall not be open to students of the male sex, while defining “male” as an “individual whose biological sex determined at birth is male.” B.P.J., a 13-year-old transgender girl who had publicly identified as a girl since the third grade and took puberty blocking medication, sued when the law prohibited her from joining her school’s track team, arguing that the law violates both the Equal Protection Clause and Title IX. The Fourth Circuit held that the law as applied to B.P.J. violates Title IX, and remanded the Equal Protection claim for further consideration.
The Central Issues
The facts of the cases differ, as do the details of the Circuit Court holdings, which can affect the Supreme Court’s decision in a variety of ways. But at the core, the main issues to be decided are whether state laws that ban transgender females from participating in female sports violate the Equal Protection Clause and Title IX.
Because the Equal Protection Clause issue is gender-related, the Court will analyze it under the intermediate scrutiny test. For a law to pass that test, it must serve an important governmental interest and be substantially related to achieving that interest. There is little doubt that the Court will consider participant safety and competitive fairness as important governmental interests to be served by laws banning transgender females from playing female sports. So, in determining whether the laws violate the Equal Protection Clause, the central issue will likely be: is a categorical ban of transgender females substantially related to those interests?
The Title IX claim, involving a statute rather than the Constitution, will be analyzed differently. The Court will probably consider the purpose of Title IX, which is to prohibit discrimination in education on the basis of sex, and the fact that separating sports by sex has long been recognized as a legitimate means of furthering that purpose. But the central issue will likely be similar to that raised under the Equal Protection claim: are state laws banning all transgender females from female sports so broad as to be discriminatory within the meaning of Title IX?
The Nuances
Resolution of the central issues will likely form the core of the Court’s decision, but the details of the decision and their impact on transgender athletes and sports organizations will also be shaped by more nuanced questions, including:
- Rather than taking a one-size-fits-all approach, will the Court adopt a case-by-case approach, as suggested by the Fourth Circuit’s holding?
- Many scientists believe that male advantages in sports can be minimized to a greater extent when a transgender female’s transition occurs pre-puberty rather than post-puberty. Will the fact that B.P.J. transitioned pre-puberty, whereas Hecox transitioned post-puberty, impact the Court’s decision?
- The challenged laws define “sex” as biological sex assigned at birth, but the Circuit Courts recognized gender identity in the definition of sex. How will the Supreme Court address this?
- In Bostock v. Clayton County, 590 U.S. 644 (2020), the Supreme Court (in an opinion authored by Justice Gorsuch and joined by Chief Justice Roberts in addition to four liberal-leaning justices) ruled that under Title VII of the Civil Rights Act of 1964, “sex” includes “gender identity,” meaning that employers may not discriminate on the basis of gender identity. Will that impact the decision in these cases?
- How will the Court address the gender verification process in the Idaho statute? The Ninth Circuit found this process to be egregious, and the defendants barely defended it in their petition for certiorari.
- Both of these cases arose in an educational context. Could the Court’s decision impact sports organizations which operate outside this context, such as professional sports, Olympic sports, and adult recreational sports?
- Will the Court’s decision impact the Trump administration’s executive order prohibiting transgender females from playing female sports?
The Decision and its Aftermath
We can expect that oral arguments will be held late this year, with a decision rendered next spring. The outcome is difficult to predict, but given the current conservative-leaning Supreme Court, it’s hard to imagine that the Circuit Court decisions will be affirmed in full. Like with many things in the law, the “devil is in the detail,” and the full impact of the decision on transgender participation in sports will depend upon the details of the Court’s opinion. While the decision will likely eliminate some of the existing uncertainties faced by transgender athletes and sports organizations, here’s betting they won’t all be resolved. And the roller coaster will keep chugging along.
Libba Galloway is Assistant Professor of Practice, Chair of the Department of Management and Organizations, and Director of the Business Law Program at Stetson University’s School of Business Administration.
