How Idaho's transgender sports law was dissected at the U.S. Supreme Court

The U.S. Supreme Court on Tuesday heard arguments in a case challenging an Idaho law that bars transgender women and girls from participating in sports that align with their gender identity.

The case began in 2020, when Idaho became the first state in the nation to pass such a sweeping law targeting trans athletes. Shortly after Gov. Brad Little signed the bill into law, a transgender woman who at the time was a freshman at Boise State University sued.

Both sides and the principal deputy solicitor general for the U.S. Department of Justice briefly presented their arguments to a nearly full room and then faced questions from justices.

The arguments centered around whether barring transgender women and girls from participating in women’s and girls sports violated the Equal Protection Clause of the Fourteenth Amendment. Questions ranged from the definition of sex to the biological advantages males have over females and how laws should be handled when they adversely affect a small portion of the population.

Justices posed various hypothetical questions throughout and, at times, got into tense lines of questioning while trying to understand the attorneys’ arguments and what previous cases reflect about this one. Many of the questions and answers cited specific legal terms and cases, but the conversations also centered around the real-world impact of the transgender athletes law. During the nearly two-hour period, some justices leaned back in their chairs or put their heads in their hands as they listened to the arguments.

Alan Hurst, Idaho’s solicitor general, spoke to the justices first. He said gender identity doesn’t matter in sports.

“Sex is what matters in sports,” Hurst said in his opening remarks. “It correlates strongly with countless athletic advantages, like size, muscle mass, bone mass and heart and lung capacity. If women don’t have their own competitions, they won’t be able to compete.”

Kathleen Hartnett of Cooley LLP, representing transgender athlete Lindsay Hecox, countered that Supreme Court precedent is in Hecox’s favor. Hecox remains a Boise State student but no longer competes in athletics. She tried out unsuccessfully for the Boise State track and cross country teams but competed in club women’s soccer, according to court documents.

“This court’s cases have recognized that when the government’s justification for a sex-based classification does not apply to a discrete subgroup of those classified, that classification is unconstitutional,” Hartnett said.

Much of the discussion focused on whether the Supreme Court should consider transgender women too small of a group to justify a challenge to the law under the Equal Protection Clause. Justices also discussed what biological advantages males have over females, how those can be eliminated and the definition of sex.

“We actually have identified a discrete subgroup: transgender women who do not have an athletic advantage,” Hartnett said.

Hartnett said Idaho’s articulated justification of its law was to protect women’s sports from males who have a biological advantage, but Hecox, she said, had mitigated that through hormone treatment.

The law, she said, “thus fails heightened scrutiny as applied to Lindsay and transgender women like her who have no sex-based biological advantage as compared to birth-sex females.”

Hurst disagreed. He said in his counter that medical transition doesn’t “reliably” suppress all advantages and that sex is the right classification to use. In his closing remarks, Hurst emphasized the importance of a sex-based split for sports.

“It is the fairest and the safest and most administrable way to assign sports teams,” he said. “It’s been widely accepted for many decades because it’s necessary for fair competition. Because where sports are concerned, men and women are obviously not the same. If Idaho can’t enforce a sex-based line here in sports where nobody disputes the biological differences matter, then no line based on biological sex can survive constitutional scrutiny.”

‘Perhaps not our finest hour’

The arguments began at 8 a.m. Mountain time and ended shortly before 10 a.m.

A ruling likely will come later this year. Opinions are traditionally released by the last day of the court’s term, when justices take a recess for summer in late June or early July, according to the Supreme Court’s website. Opinions that are unanimous are normally released sooner than more controversial opinions.

The Supreme Court agreed last year to hear arguments in the case, Bradley Little, et al. v. Lindsay Hecox, et al. The court on Tuesday also heard arguments in a case about a West Virginia teenager whose family challenged a state law requiring trans girls to participate in sports that correspond with their sex assigned at birth. That case also centered around whether the law violated Title IX.

In recent years, about half of all states across the country have passed their own laws targeting trans athletes, according to the Williams Institute at UCLA School of Law. Justice Brett Kavanaugh asked Hurst if the states that allow trans women and girls to play in women’s and girls sports are violating the Equal Protection Clause, but Hurst said he hasn’t been “persuaded by a constitutional theory that would let us use the Equal Protection Clause to impose our policy on other states.”

At one point, Hartnett mentioned the discrimination trans people have faced after Hurst spoke to differences between the treatment of trans people and the history of discrimination against Black Americans or women. She said transgender people were “categorically excluded” from immigration to the U.S. under the umbrella of “being a psychopath.”

“That was the actual decision of this court in the 1967 Boutilier case. It was interpreting language of Congress that determined that when Congress used the term ‘psychopathic personality’ to exclude people, they meant for that to cover gay and transgender people, too, she said.

Justice Neil Gorsuch interrupted and quipped, “Perhaps not our finest hour.”

“Well, it’s not your fault,” Hartnett replied, drawing laughs from the courtroom.

Protesters gather in front of Supreme Court

Early Tuesday morning, people were gathering in front of the Supreme Court to hold a rally in support of transgender athletes, including Becky Pepper-Jackson, the teen in the West Virginia case.

Transgender athletes have been turned into a “political bogeyman,” Gillian Branstetter, communication strategist for the American Civil Liberties Union’s LGBTQ & HIV Project, told the Idaho Statesman in front of the courthouse Tuesday morning.

People have been “very transparent that their goal here today is not just to ban girls like Becky from playing with their friends, but to broadly push transgender people out of public life and to secure a court precedent that doesn’t just push us off playing fields but denies us the full protection of Title IX and the U.S. Constitution altogether,” she said.

During the arguments, crowds of people gathered to show support for and rally against trans athletes. The groups stood next to each other in front of the steps leading to the Supreme Court, separated by barricades. Each side held signs, chanted and gave speeches at the same time, shouting over each other into speakers.

Many people held up trans flags calling to protect trans rights and provide equality for all people under the law. Those on the opposing side raised signs reading “reality matters, biology matters” and “our sports, our spaces.”

After the arguments, Idaho Attorney General Raúl Labrador said there was a lot of “rhetoric” heard in the courtroom, but that the case was simple.

“We’re talking about simple biology,” he told reporters.

Josh Block, senior counsel with the ACLU’s LGBTQ & HIV Project, said the team had a chance to show the court the reality of what it’s like to be a trans athlete and he’s hopeful the court heard the message.

Kevin Jennings, the CEO of Lambda Legal, an organization that advocates for the rights of LGBTQ+ people, called Pepper-Jackson an “American hero,” who was standing up for kids across the country.

“What this is about is something I learned as a high school teacher 40 years ago,” he said in front of the court. “Every kid has a right to play. Every kid has a right to belong. Every kid has a right to be treated equally.”

Idaho’s case could be considered moot

Labrador argued last week that Idaho’s law ensures “fairness, safety and equal athletic opportunities for girls and women.”

“The Constitution permits states to recognize biological differences and preserve women’s sports for female athletes, and Idaho’s law does exactly that,” he told reporters.

The ACLU has said the law discriminates against and harms trans women and girls. The organization said this case could have far-reaching consequences on trans rights more broadly.

Last year, Hecox asked the court to dismiss her case as moot. She is no longer playing women’s sports and wants to focus on finishing her degree, the ACLU said. A federal judge in October denied that request, saying the state has a “fair right to have its arguments heard and adjudicated once and for all.”

Whether the case is moot was part of the Supreme Court’s discussion. Justice Sonia Sotomayor asked Hurst if he disputed that having a case named after you makes your “infamy live forever.”