Supreme Court appears likely to uphold transgender athlete bans

The Supreme Court on Tuesday during oral arguments seemed likely to uphold laws that prohibit transgender women and girls from competing on women’s and girls’ school sports teams. After nearly three-and-a-half hours of arguments in a pair of cases from Idaho and West Virginia, a majority of the justices appeared to agree with the states that the laws can remain in place, even if it was not clear how broadly their ruling might sweep.

The court’s three Democratic appointees appeared to recognize that the challengers faced an uphill battle. They seemed to devote much of their efforts to mitigating their losses – either by getting one case thrown out or by limiting the court’s decision to a narrow one.

Idaho adopted its law in 2020; West Virginia followed one year later. Lindsay Hecox, now 24 years old, went to federal court in Idaho to challenge that state’s law. Hecox is a transgender woman who wanted to be able to try out for the women’s track and cross-country teams at Boise State University; she did not make those teams but later played club sports.

The West Virginia case was filed by Heather Jackson, the mother of B.P.J., a now-15-year-old transgender high school student who has publicly identified as a girl since the third grade. B.P.J. has taken puberty blockers to prevent the onset of male puberty, as well as hormone therapy with estrogen. B.P.J. has competed on the track and cross-country teams at school.

A federal appeals court in San Francisco barred Idaho from enforcing its law. The U.S. Court of Appeals for the 9th Circuit agreed with Hecox that the law violates the 14th Amendment’s equal protection clause because it was intended “to categorically ban transgender women and girls from public school sports teams that correspond with their gender identity.” The law also discriminates on the basis of sex, the panel concluded, because athletes on girls’ and women’s teams – but not on boys’ and men’s teams – are subject “to invasive sex verification procedures to implement the law.”

The U.S. Court of Appeals for the 4th Circuit in Richmond issued an order that prohibited West Virginia from enforcing its law, but for a different reason. That court ruled that West Virginia’s law violates Title IX, a federal civil rights law that bars sex discrimination in educational programs and activities that receive federal funding, because it discriminates against B.P.J. on the basis of sex.

Idaho Solicitor General Alan Hurst told the justices that Idaho’s ban classifies athletes based on sex, not gender identity, because sex correlates with characteristics (such as strength) that provide athletes with an advantage and therefore is the key distinction in sports. The purpose of the state’s law, he said, is to preserve equal opportunities for women and girls in sports.

Representing West Virginia, Michael Williams – that state’s solicitor general – echoed Hurst’s statements. The West Virginia law, Williams insisted, was intended to ensure that women and girls can safely compete in school sports.

But Kathleen Hartnett and Joshua Block, who argued on behalf of Hecox and B.P.J., respectively, countered that Title IX and the 14th Amendment are intended to protect everyone. And if transgender athletes like B.P.J. and Hecox do not have the biological advantages that the laws target in the name of fairness, they said, there is no reason why their clients cannot play on sports teams that match their gender identity.

The court’s Democratic appointees appeared to agree. Justice Ketanji Brown Jackson, for example, asked Hurst about “someone who is transgender but who does not have, because of the medical interventions and the things that have been done, who does not have the same threat to physical competition and safety and all of the reasons that the state puts forward.” Why shouldn’t that person, Jackson suggested, be able to bring a challenge to the law as it applies to her?

Justice Neil Gorsuch, who in 2020 wrote for the majority in Bostock v. Clayton County, holding that federal employment discrimination laws protect LGBTQ employees, initially appeared to voice some support for the challengers. He pushed back against the states’ argument that transgender people are not a “suspect” class – that is, people who have historically been subject to discrimination (which would require any discrimination against them to be subject to heightened scrutiny). 

But Gorsuch later suggested that Title IX would not pass muster under the Constitution’s spending clause – which requires Congress to clearly indicate when it intends states to be bound by accepting funds – because when the law was enacted in 1972 states would have understood the term “sex” to refer to “biological sex.”

Two of the court’s conservative justices also appeared to side with the states. Justice Brett Kavanaugh suggested (among other things) that the Supreme Court should stay out of the debate right now given the “scientific uncertainty” and the “strong assertions of equality interest on both sides.” “[G]iven that half the states are allowing it, allowing transgender girls and women to participate,” Kavanaugh posited, “why would we at this point … jump in and try to constitutionalize a rule for the whole country?”

And Justice Amy Coney Barrett asked Hartnett “how would we say this discriminates on the basis of transgender status when” “trans boys can play on boys’ teams,” so that the effect of the law “really only runs towards trans girls?”

Hashim Mooppan, representing the Trump administration, offered what he characterized as a straightforward way to resolve B.P.J.’s case. Regulations issued under Title IX, he said, indicate that schools can draw distinctions based on sex, which the litigants agree means biological sex. Therefore, he contended, whether the challengers are correct that puberty blockers and hormone therapy eliminates any advantages that transgender athletes might otherwise have is irrelevant.

The court spent relatively little time on Hecox’s request to dismiss the case as moot – that is, no longer a live controversy. Hecox had sought to end the case in the lower court, arguing that she hoped to graduate soon, that she did not intend to try to play sports in Idaho again, and that she disliked the negative public attention that she had received as a result of the case. Justice Sonia Sotomayor, perhaps as part of an effort to minimize the effect of the court’s ruling, showed interest in Hecox’s request, but overall, the question did not receive much attention.

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https://www.scotusblog.com/2026/01/supreme-court-appears-likely-to-uphold-transgender-athlete-bans/ January 13, 2026 at 02:21PM