The Supreme Court heard arguments Tuesday over state bans on transgender athletes in women’s and girls’ sports. The court’s forthcoming rulings in the two argued cases from Idaho and West Virginia could affect similar laws in 25 other states as well.
The court sounded likely to side with the states, though the scope of the rulings, expected by July, remains to be seen.
While we await those crucial decisions on state bans, it’s worth considering another epic question that hummed in the background of the hearings: Can the remaining states allow transgender women and girls to compete on their chosen teams?
The court isn’t expected to answer that broader question in these cases. But multiple justices brought it up Tuesday, led by Justice Brett Kavanaugh.
In the Idaho case, Little v. Hecox, the Trump-appointed justice asked the state’s lawyer, Alan Hurst, if the other states that let transgender women and girls play on their chosen teams are violating the Constitution’s equal protection clause, or whether it’s up to each state to decide. Hurst said he hadn’t “yet been persuaded by a constitutional theory that would let us use the Equal Protection Clause to impose our policy on other states in this matter.”
Yet a lawyer for the Trump administration who argued in both cases, Hashim Mooppan, noted that the federal government has been “actively litigating” against states that allow transgender sports participation — though not under equal protection but rather under federal law called Title IX that bans sex discrimination.
During the hearing in the West Virginia case, which involves Title IX, Kavanaugh raised his forward-looking concern to that state’s lawyer, Michael Williams. The lawyer said that “under equal protection, I think we agree with our friends in Idaho that there’s enough room for California to make a different determination.” But Williams said it’s a closer question under Title IX and that the court doesn’t need to resolve that issue about the permissive states in this case.
When Mooppan argued again in the West Virginia case, Justices Sonia Sotomayor and Elena Kagan asked him about those other states, too. Kavanaugh also brought it up again, wondering aloud how California could prevail in the natural follow-up litigation. Mooppan offered an idea of what the Democratic-led state could argue, adding: “Whether that argument is right or wrong is for another case, but I don’t think if you adopt the argument I’m making here today, their hands are going to be tied.”
When the American Civil Liberties Union’s Joshua Block argued in favor of Becky Pepper-Jackson in the West Virginia case, Kavanaugh brought up the forward-looking issue yet again, calling it “real important.” Kagan went so far as to ask Block what the court should or shouldn’t say in its ruling in this case if it didn’t want to prevent states from making their own choices in future cases.
One of the things Block said in response to Kagan was that the court doesn’t need to define sex in this case.
Perhaps signaling battle lines to come in that future fight, Justice Samuel Alito, who is likely to side against the transgender position, said Title IX prohibits discrimination on the basis of sex and so “it must mean something.”
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