Joshua Villanueva is JURIST’s Washington, DC Correspondent and an LL.M. candidate in National Security and U.S. Foreign Relations Law at The George Washington University Law School. 

Two groups, two slogans, and one Court. On one side of the plaza, opponents of Idaho’s and West Virginia’s transgender bans rallied behind a speaker who shouted into a microphone, “If you love a trans person, will you scream?” The crowd answered with a roar. A few hundred yards away, supporters of the laws held signs and chanted that they were standing for “biology against ideology.”

The Supreme Court on Tuesday heard nearly three and a half hours of argument in back-to-back challenges to Idaho’s and West Virginia’s laws limiting girls’ and women’s teams to students classified as female at birth. In Little v. Hecox, plaintiff Lindsay Hecox challenged Idaho’s “Fairness in Women’s Sports Act” under the Equal Protection Clause. In West Virginia, a 15-year-old transgender girl known as BPJ challenged that state’s similar statute under both Title IX and Equal Protection.

The Ninth Circuit upheld the injunction for Hecox but vacated it for other plaintiffs, determining that the Act’s “text, structure, findings, and effect” indicate a categorical exclusion of transgender women and girls, and that its verification procedures impose burdens on participants in girls’ and women’s athletics.

In West Virginia v. BPJ, the Fourth Circuit reversed the district court’s decision. The Fourth Circuit held that West Virginia’s categorical exclusion violates Title IX as applied to BPJ and that BPJ was excluded from participation “on the basis of sex” within the meaning of Title IX.

The court found that Title IX does not incorporate an “important governmental interest” justification test once discrimination is shown.

Little v. Hecox

Idaho Solicitor General Alan Hurst opened the morning. “Idaho’s law classifies on the basis of sex because sex is what matters in sports,” he argued, citing sex-linked differences in size, muscle mass, bone density, and heart and lung capacity. He said Idaho “treats all males equally and all females equally regardless of identity,” and any “edge cases” where the fit is imperfect should be reviewed only under rational basis. That framing drew immediate resistance from Justices Sotomayor, Kagan, and Jackson.

Justice Sotomayor pointed out that a law that bars a person from women’s sports because she is biologically male is “by its nature” a sex classification. And “all sex classifications,” she stressed, “we have said repeatedly in our case law require intermediate scrutiny.”

Justice Kagan pushed the point further. If a “small subclass” can show “the justification has run out” for them, she asked, why doesn’t Equal Protection permit relief for that group? Is Idaho’s position that “there really is no such thing” as an as-applied Equal Protection claim to a sex classification?

Justice Jackson appeared puzzled by Hurst’s argument about the nature of an as-applied challenge and emphasized that it is not about proposing a different classification but rather seeking an exception based on individual circumstances. She asked, “But what I’m asking is if that is—if that is the ask here, not that all transgender women be allowed but that this particular plaintiff be allowed based on their circumstances, why is that so not administrable or proposing a different classification that we’re not going to be able to sustain? I don’t understand that.”

US Principal Deputy Solicitor General Hashim Mooppan, arguing as amicus in support of Idaho, backed Hurst’s structural view but tried to give the Court a concrete “threshold.” He argued that if tiny subclasses can win as-applied challenges under intermediate scrutiny, that turns intermediate scrutiny into strict scrutiny, because that insists on a very tight fit, case by case.

Mooppan referenced Michael M. (statutory rape) and Nguyen. In both, he noted, the Court upheld broad sex-based rules even though some people, like the infertile, plainly fell outside the justification. The Court did not carve out exceptions for those individuals. That, he argued, shows that intermediate scrutiny tolerates some mismatch.

Mooppan suggested that a challenge might work only if a large enough group of people affected by the law (he gave one-third as an example) do not fit the law’s reason. This matched Hurst’s earlier point that when the group is very small, like transgender women who fully lower their testosterone, the law still makes sense and is allowed, even for them.

Justices Kagan and Jackson asked why a single person who can clearly show that the state’s justification does not apply to her should get no constitutional remedy simply because she is statistically rare. Jackson worried out loud about the systemic consequences: facial challenges are already hard to win, and if as-applied challenges now come with a size requirement for subclasses, Equal Protection could become a theory with no real remedy for precisely the people who most obviously fall through the cracks.

Lindsay Hecox’s counsel Kathleen Hartnett framed Idaho’s statute first as a sex-based rule: it bars all students classified male at birth from women’s teams. She stressed that Idaho itself has defined its goal as preventing the advantages associated with male puberty, especially testosterone-driven strength and speed. For transgender women like Hecox, who have suppressed testosterone and taken estrogen for over a year, Hartnett argued, that rationale simply does not apply. On that record, the law fails heightened scrutiny as applied to them.

Chief Justice Roberts asked whether this approach would effectively apply strict scrutiny to a distinction the Court has never treated that way, requiring carve-outs whenever any “fairly small group” diverges from the general justification. Justice Alito pressed for a return to basics: how can a court decide whether there is discrimination “on the basis of sex” without first deciding what “sex” means for Equal Protection purposes? Hartnett declined to offer a general definition of “man” or “woman,” arguing that the Court can accept Idaho’s statutory framework for analysis and still hold that the law is unconstitutional where the state’s own reasons do not hold in a particular category of cases.

Justice Barrett focused on the science. She asked if testosterone is really the only or main reason for an advantage, or if things like bone structure and height, which can stay the same after hormone treatment, still matter. Hartnett pointed to the limited evidence and cited an Olympic study suggesting that a larger frame without corresponding testosterone-driven muscle can actually be a disadvantage.

Justice Kavanaugh addressed the bigger picture: women’s and girls’ sports, he said, are “one of the great successes in America over the last fifty years.” He worried that even a few transgender women could cause real losses for cisgender girls, like not making teams or missing out on scholarships. Hartnett answered that the real legal question is not whether cisgender girls might sometimes lose to transgender girls; it is whether transgender athletes have an “unfair biological advantage.” If they do not, she said, coming in second is just part of normal competition, not a legal problem.

The justices paid little attention to Hecox’s bid to have the case dismissed as moot. Hecox had asked the lower court to end the case, noting that she expected to graduate soon, did not plan to compete in Idaho again, and was weary of the intense public scrutiny. Justice Sotomayor showed some interest in that argument, but the issue remained largely peripheral. 

West Virginia v. BPJ

West Virginia v. BPJ covered similar themes but also addressed Title IX and its athletics regulations.

Representing West Virginia, Solicitor General Michael Williams echoed Idaho’s themes: “States have long assigned students to sports teams by sex,” he said, and his state’s law is designed to ensure that girls “can safely and fairly compete.”

West Virginia and Mooppan, arguing again as amicus for the US government, leaned heavily on Title IX’s athletics regulation, 34 C.F.R. § 106.41, which expressly permits schools to field separate boys’ and girls’ teams in certain sports. Their argument was that in 1972, when Title IX was enacted, and in 1975, when the regulation was issued, “sex” was universally understood to mean biological sex, and the regulation built an entire sports system around that premise. West Virginia, they insisted, is merely applying that long-established separation, and B.P.J. is not mounting a direct challenge to the regulation itself. On that view, Title IX affirmatively allows West Virginia’s rule as a matter of law, freeing the Court from having to referee disputed sports science about hormones, puberty, and performance.

BPJ’s lawyer, Joshua Block, asked the Court to look at Title IX in a way that focuses on each person. He argued that West Virginia’s use of the sports rule to completely block transgender girls like BPJ (who never went through typical male puberty) turns a fair separation into unfair discrimination based on gender roles. He said Title IX is supposed to protect each student from unfair treatment. The sports rule is meant to help keep things fair overall, not to let schools completely exclude some girls from sports. For a transgender girl who does not have the “male puberty” advantages the state is worried about, a total ban does not give her an equal chance to play sports under Title IX; it just keeps her out. Block pointed out that, unlike a cisgender boy, BPJ has no real other option if she cannot be on the girls’ team because she lives as a girl. Playing on boys’ teams is unrealistic, so keeping her out of girls’ sports really means she cannot play school sports at all.

The justices also addressed issues raised by Bostock, the Spending Clause, and disparate impact.

Petitioners tried to narrow the 2020 Bostock ruling that firing someone for being gay or transgender is discrimination “because of sex,” arguing that not every sex-based rule is a transgender classification. The Chief Justice asked whether any boys/girls line in sports automatically becomes a transgender case when a transgender student is involved. Block answered that the problem here is unequal treatment. Cisgender girls may play on girls’ teams; transgender girls may not. That, he argued, is discrimination “on the basis of sex” under Title IX.

Justice Gorsuch stressed “clear notice” as he addressed the Spending Clause issue. Because Title IX is a funding statute, he suggested that in 1972, a reasonable state would have understood it to permit sex-separated teams based on biological sex. Requiring states now to include transgender girls on girls’ teams might exceed what Congress unambiguously conditioned federal funds on. Justice Jackson countered that the Court’s clear-notice cases mostly address available remedies, not the basic scope of the statute’s prohibitions.

Mooppan also emphasized that Title IX does not support private suits based solely on disparate impact. West Virginia’s law, he said, is facially a sex-based rule that applies to everyone, and the fact that it burdens transgender girls most is not enough. Block replied that this is not just an impact claim. BPJ is treated differently from other girls for team eligibility because she is transgender, which he framed as direct discrimination on the basis of sex.

Equal Protection played a supporting but still important role in West Virginia’s argument, and its logic largely tracked Little. West Virginia maintained that the law even passes intermediate scrutiny because it is substantially related to important interests in fairness and safety in girls’ sports. BPJ responded that, as applied to her, the law fails that test: she does not have the “male puberty” advantages the State invokes, so a blanket ban is overinclusive and poorly tailored to the State’s stated goals.

Since the record in BPJ includes detailed evidence about her long-term use of puberty blockers and estrogen, the justices had a more concrete factual picture than in the Idaho case. The same basic question returned: does Equal Protection demand case-by-case exceptions in situations like hers, or does intermediate scrutiny allow legislatures to rely on general rules even if a few individuals are inevitably placed on the less favorable side of the line?

Whatever the Court decides, these two cases will not be narrow disputes about two athletes and two state laws. A ruling that blesses or constrains these bans will immediately echo across the 27 states with similar statutes, effectively setting the national ground rules for when, if ever, transgender girls may compete on girls’ and women’s teams.

Decisions for both cases are expected by late summer.