This Tuesday, the Supreme Court heard oral arguments regarding two cases about transgender girls in sports: Little v. Hecox and West Virginia v. B.P.J.
In 2020, Idaho Governor Brad Little signed into law HB 500, which bans transgender girls and women from participating in school sports. This affected the first case’s respondent: transgender student athlete Lindsay Hecox, who was barred from participating in the track and cross country teams as well as intramural soccer and running clubs.
In 2021, then-governor of West Virginia, Jim Justice, approved HB 3293, which enacts a similar ban. Becky Pepper-Jackson (B.P.J.), now an incoming high school student, opposed the discriminatory policy when it prevented her from joining her then-middle school’s cross country and track and field teams. Pepper-Jackson has also only undergone female puberty due to gender-affirming care, but West Virginia argues that its anti-transgender policies should be upheld because of her assigned sex at birth.
For LGBTQ+ advocates and allies, these cases illustrate the burden and harm transgender people face daily as their rights to privacy, dignity, care, and inclusion are constantly at risk of being eroded and stripped completely.
Experts also wonder if these cases could potentially reshape the Constitution’s Equal Protection Clause as well as the civil rights law, Title IX. The former prohibits discrimination on other factors aside from race, though governments have argued that certain “suspect classifications” can be looked at more closely through “heightened scrutiny.” The latter prohibits sex-based discrimination in federally-funded schools.
What is unfolding and how local advocates are informing change:
The fight ahead is weary, and experts are certain that the states involved will not concede their points. In a webinar organized yesterday by the Williams Institute, several LGBTQ+ policy experts, including Rutgers Law School professor and anti-discrimination scholar Katie Eyer, examined where these cases may be heading, as well as efforts to muddy the arguments.
“It seems possible that the court might try to sidestep that issue here by saying that these laws don’t target transgender people at all,” Eyer said. “I think for most people, this seems bananas: like an upside-down world. We all know these laws were about transgender people.”
Jenny Pizer, an attorney for the LGBTQ+ civil rights legal organization Lambda Legal and a co-counsel member for the B.P.J. case, affirmed this sentiment at a press conference organized Tuesday by Lambda Legal and AIDS Healthcare Foundation affinity group, FLUX. “They’ve gone to great lengths to say there’s no discrimination,” Pizer said. “[They’re arguing] it’s just technicalities or classifications.”
Eyer was one of three Equal Protections scholars who filed an amicus brief to be considered in the Supreme Court cases. An amicus brief is a legal document submitted by someone who is not involved directly in a case but who may offer additional perspectives and information that can inform the ruling process.
Eyer’s brief provided historical context that clarified the disadvantages of blanket sex-based policies. These types of laws, according to Eyer, uphold stereotypes over nuance, truth, and equal protection guidelines. For Pepper-Jackson, who has only undergone female puberty and who does not “benefit” from what dissidents define as a sex-based competitive “advantage,” the state should have provided her the ability to argue that she should have the same rights as other girls.
“Of course, the state hasn’t done that here,” Eyer said. “Under these precedents, the Supreme Court should invalidate the laws as applied to those trans girls who really don’t have a sex-based competitive advantage.”
Who are these bills protecting?
The states argue that their policies are merely “ensuring safety and fairness in girls’ sports.” But queer advocates understand that this is a veneer for the exclusion of transgender people from society. Forcing trans youth out of sports “does not protect anyone,” according to California LGBTQ Health and Human Services Network director Dannie Ceseňa, who spoke at Tuesday’s press conference.
“It encourages the scrutiny of children’s bodies. It fuels gender policing, and it creates hostile school environments — not safer ones,” said Ceseňa. “Our youth should not inherit a world that treats their existence as a threat.”
Transgender people are systemically disempowered
At yesterday’s webinar, Distinguished Visiting Scholar at the Williams Institute Andrew Flores discussed his own amicus brief in support of Pepper-Jackson. The brief highlights the need for “heightened judicial scrutiny” in Pepper-Jackson’s case because the majority of political processes “systemically fail” transgender people.
For example, the transgender community faces substantial barriers in exercising their voter rights because of voter identification laws and other policies that regulate and define identity. “Even being able to gain access to the franchise is a burden for transgender people,” Flores said. “The court does play an important role there. It can grant legitimacy to arguments…or at least [acknowledge] that these issues are more complicated than maybe how they’ll receive them.”
What’s next?
Experts are hesitant about where the cases stand. “Bottom line: I don’t know what the court is going to do in these cases. They may send them back down for further development,” Pizer said, who thinks future rulings will not shift more overarching policies regarding transgender rights. “I think they will probably decide based only on laws about sports, not laws more broadly about the rights of trans folks.”
But whatever is decided, the impacts will trickle down to everyone. While the cases deal specifically with anti-transgender policies, experts warn that LGBTQ+ issues have always been tied to racial, economic, and disability justice. “There’s this looming constitutional campaign to really undermine civil rights,” said Eyer. “That affects LGBTQ people. It affects people of color. It affects people with disabilities. It affects everybody, and it really is concerning.”
As transgender inclusion and safety are being argued on the largest legal stage, advocates are asking: “When are you going to step up?” They are also sending a direct message to transgender youth: “We see you, we believe in you, and we are fighting for you,” said Ceseňa. “You deserve joy, community, and care. You deserve a future that reflects who you are and not who anyone or any politician demands you to be. Trans youth deserve better.”
Kristie Song is a California Local News Fellow placed with the Los Angeles Blade. The California Local News Fellowship is a state-funded initiative to support and strengthen local news reporting. Learn more about it at fellowships.journalism.berkeley.edu/cafellows.
