The first case was Little v. Hecox. The second was West Virginia v. B.P.J.
They hinge on two separate bills — HB 500 in Idaho, and HB 3293 in West Virginia. Both prohibit trans girls and women from playing sports. Lindsay Hecox is a college student at Boise State University. B.P.J. — or Becky Pepper-Jackson — is a minor who’s now in high school. They’re both transgender. Here’s Calder Storm, an activist with Rainbow Families Action, a Bay Area coalition of parents with trans kids and their allies.
“So this case happens to be about sports spans, but if they ultimately rule that the equal protection clause of the Constitution does not protect trans people, then there's nothing stopping them from saying that states can feel free to ban trans people from job opportunities, from housing, from education, to all sorts of other inclusion issues.”
Hecox’s case was heard first. During oral arguments, the lawyer for the Trump administration — Hashim Mooppan — argued that states are allowed to separate their sports teams based on sex because of “biological differences.”
“ Denying a special accommodation to trans identifying individuals does not discriminate on the basis of sex or gender identity, or deny equal protection,” said Mooppan.
He also argued that the Idaho law is valid because such a small percentage of the population identifies as transgender. Justice Sotomayer pushed back on this argument.
“What’s percentage enough?” Sotomayor asked. “There are 2.8 million transgender people in the United States. What makes a subclass meaningful to you? Is it one percent? Five percent? Thirty percent? Fifteen percent?”
Hecox’s lawyers argued that because she takes estrogen and suppresses her testosterone levels, she should be allowed to play with her cis peers. Interestingly, Hecox actually moved to withdraw her case in September. She said she’s no longer playing sports and is afraid that the high profile case will lead to more harassment and may even affect her chances of graduating. However the Justices decided to hear the case before deciding whether or not to dismiss it.
In the second case, West Virginia v. B.P.J., West Virginia argued that challenging the law is essentially an attack on Title IX, the federal law that has helped fuel participation of women and girls in sports.
But Pepper-Jackon’s lawyer — Joshua A. Block — argued that West Virginia is discriminating against her.
“ We are not disputing in this case that West Virginia can have its definition of sex,” said Block. “Our argument is: It's using this definition to inflict discrimination and deny equal athletic opportunity.”
Pepper-Jackson's lawyers also argued that because Pepper-Jackson started hormone replacement therapy at a young age, she doesn’t have an advantage over her cisgender peers.
The court hasn’t yet issued a ruling, but Calder Storm says that upholding the bans won’t just affect trans people.
“I wish more folks would realize that if the Supreme Court sets a precedent and allows these bans to go into place, it just ultimately leads to a reduction in protection for so many other marginalized groups. These bans are misogynistic, these bans are racist. These bans are so much more than quote, just transphobic."
Based on today’s hearing, it does not seem likely that the court’s conservative majority will strike down state laws that prohibit trans women and girls from playing sports.
