Supreme Court appears likely to allow state bans on biological males competing in female sports

A majority of the Supreme Court’s justices appeared inclined Tuesday to uphold state laws to protect female sports from biological males in a high-stakes showdown over whether the laws are constitutional.

Transgender athletes brought cases in Idaho – Little v. Hecox – and West Virginia – in B.P.J. v. West Virginia – over the states’ bans on biological males competing in female athletics, arguing the laws violate the 14th Amendment’s equal protection clause. The states have defended their laws as a necessary measure to protect women from being unfairly forced to compete against men, whose “inherent differences” tend to make them stronger and faster.

“This case is monumental not only for West Virginia, but for our entire country. The outcome will impact the future of women’s sports, the promises of Title IX, and the safety of our daughters,” West Virginia Attorney General JB McCuskey said in a statement.

Groups supporting the transgender athletes, including the American Civil Liberties Union, have said the state laws discriminate against transgender students. They argue that although transgender athletes are a “tiny fraction of athletes overall,” there has been outsized attention on the issue from opponents.

While the issue has ignited a national debate, public polling consistently shows an overwhelming majority of Americans oppose allowing transgender athletes to compete in female sports. NBC News polling last year indicated three-quarters of American adults believe athletes should compete based on their biological sex.

Justice Brett Kavanaugh asked Tuesday why the court should jump into the fray at this stage, “given that half the states are allowing it, allowing transgender girls and women to participate, and about half are not.”

“Why would we at this point, just the role of this court, jump in and try to constitutionalize a rule for the whole country while there’s still, as you say, uncertainty and debate?” he asked.

It’s not the first time the court has appeared wary of jumping ahead of legislatures and science when it comes to transgender topics. In U.S. v. Skrmetti last year, which centered around gender transitioning procedures for minors, Chief Justice John Roberts noted that questions regarding the policy are best left to the people, their elected representatives, and the democratic process.” He added that medical and policy debates were still ongoing in the field, and that the court’s role was not to judge the fairness or logic of the laws, but rather if they violate the 14th Amendment. 

During arguments Tuesday, Kavanaugh also alluded to concerns that transgender athletes could undo decades of progress in women’s rights.

“Obviously, one of the great successes in America over the last 50 years has been the growth of women and girls’ sports, and it’s inspiring,” he said. 

Justice Samuel Alito underscored widespread opposition from female athletes across the country to competing against biological males.

“What do you say about them? Are they bigots?” Alito asked an attorney representing a transgender athlete. “Are they deluded in thinking they are subjected to unfair competition?”

The court’s liberal justices, including Justice Ketanji Brown Jackson, appeared more skeptical of the state laws.

“For cisgender girls, they can play consistent with their gender identity, for transgender girls, they can’t,” Jackson said. 

The justices are expected to make a decision in the case by June, when the court’s term ends. 

Ahead of arguments, women’s rights advocate Riley Gaines – who was forced to compete against biological males in college – said the Supreme Court would hear arguments on whether men’s feelings trump women’s rights to safety, privacy, and equal opportunity.” 

“How did we get here?” she asked.

Republican governors from across the nation also weighed in Tuesday to support West Virginia and Idaho’s laws, arguing that women’s hard-earned rights in athletics are at risk. 

“Recognizing the unique and inherent biological differences between men and women is not radical, it is commonsense,” the GOP governors said, Fox News reported. “For generations, women fought for equal opportunity on the playing field and won over 50 years ago with the passage of Title IX, and now that right is at risk again.” 

The case could send shockwaves far beyond the world of sports, the Becket Fund,  a law firm focusing on religious freedom, warned.

The case “threatens to redefine the meaning of sex discrimination under federal law,” the group wrote on X, referencing its amicus brief in the lawsuit over West Virginia’s law. If the court strikes down the state laws, it could “unleash a tidal wave of legal attacks against religious schools, healthcare providers, and other religious institutions nationwide.”