Justices Grapple With Limits Of Transgender Athlete Bans

Years of public and often caustic political skirmishes over transgender athletes barely registered inside the Supreme Court on Tuesday.

The justices at the nation’s highest court at times struggled with how legal precedents and anti-discrimination protections apply to state laws barring those athletes from women's and girls' competitions.

Multimillion-dollar campaign ads and testy cable news debates have defined the public discourse over transgender athletes. But on Tuesday, every justice took part in questioning that posed a range of hypotheticals about puberty blockers, infertility, past “classifications” and whether “strict scrutiny” applied to the cases.

"I've been wondering what's straightforward after all this discussion,” Justice Neil Gorsuch said more than an hour into the arguments.

Conservative justices largely focused on how to apply the sweeping absolute transgender athlete bans in West Virginia and Idaho, neither of which has taken effect over the past several years. They took into consideration hormone suppression and mitigating biological advantages, age limitations for sex-separated athletics and whether they should toss the Idaho case due to mootness.

Meanwhile, the liberal justices on the bench questioned whether the high court can comprehensively decide if most transgender women have unfair advantage when the athletes at the center of the cases do not.

“We have to decide for the whole country — constitutionalize this — given that half the states are allowing transgender girls and women to participate, about half are not,” Justice Brett Kavanaugh said.

“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 Kathleen Hartnett, who represented transgender athlete Lindsay Hecox in the first of the two cases the justices heard Tuesday.

Transgender athletics participation has divided Democrats for years while largely unifying Republicans and clearing the way for the Trump administration to roll back federal protections for transgender people.

But the high court addressed the topic for the first time Tuesday while hearing two cases from transgender female athletes challenging laws in West Virginia and Idaho barring them from participating on sports teams that align with their gender identity.

Lower-court judges have blocked the state laws after ruling that the restrictions violated the equal protection clause of the 14th Amendment and Title IX, the federal law that bars sex-based discrimination. But if the Supreme Court lets the laws proceed, it’s likely to help cement similar restrictions on transgender students in at least 27 states.

The NCAA, college sports’ top governing body, in February also restricted the participation of transgender athletes in women’s sports following President Donald Trump’s executive order that bars transgender athletes from competing on women's and girls’ sports teams.

The Trump administration is backing the states in the cases.

Principal Deputy Solicitor General Hashim Mooppan, who argued on behalf of the Trump administration, said it is “undisputed that states may separate their sports teams based on sex,” citing biological differences between men and women.

“Even assuming a man could take drugs that eliminate his sex based physiological advantages, the law is reasonably tailored,” he said, acknowledging that there is a small number of these athletes. “In short, male athletes who take performance altering drugs are not similarly situated to female athletes, and states need not treat them the same.”