Whether or not transgender athletes should be allowed to compete in girls’ and women’s sports has become a hot button issue on the national stage. And two cases currently in front of the Supreme Court could have huge stakes for the future of trans athletes nationally and here in New England.
The two cases — one involving a college athlete in Idaho, and the other dealing with a teenage athlete in West Virginia — both boil down to whether statewide bans on trans athletes competing with girls and women in public schools are lawful.
And that could have a big impact even outside of the states involved with the cases.
“The stakes are pretty high because the Supreme Court is set to decide whether or not our laws that protect against discrimination in education are going to apply when it comes to the rights of transgender students,” said Chris Erchull with GLBTQ Legal Advocates and Defenders.
Breaking down the cases
The Supreme Court heard arguments for the two cases last week.
The first case, Little v. Hecox, involves an athlete named Lindsay Hecox, who challenged the Fairness in Women’s Sports Act after she was prevented from joining the women’s cross-country team at her university. The 2020 law in Idaho banned trans women from competing on women’s and girls’ sports teams in public schools at any level — including college. For a number of reasons, Hecox asked the court to dismiss her case. But the court still decided to hear oral arguments.
The second case, West Virginia v. B.P.J., involves a 15-year-old high school student named Becky Pepper Jackson. Her mother, Heather Jackson, sued in response the Save Women’s Sports Act. That’s a 2021 law banning transgender women and girls from competing on women’s and girls’ teams in public secondary schools and colleges.
The state of West Virginia is essentially making an argument around Title IX and its prohibition of sex-based discrimination. West Virginia Solicitor General Michael Williams argued to the court that Title IX allows teams to be separated by biological sex, and the B.P.J. case “amounts to a back-door attack” on the civil rights law because it would push schools to place students on teams based on their self-identified gender, which he said would deny girls the opportunity to compete safely and fairly.
On the flip side, lawyers representing B.P.J.’s case are also focusing on Title IX and the Equal Protection Clause of the 14th Amendment.
They argue that West Virginia’s actions dilute Title IX for everyone, not just transgender students and not just around sports.
Joshua Block argued that excluding B.P.J. doesn’t advance any interest of ensuring overall fairness and safety like it would with a cisgender boy. B.P.J. has taken puberty blockers and estrogen.
“Unlike the exclusion of a cisgender boy, excluding B.P.J. doesn’t advance any interest ensuring overall fairness and safety,” Block said. “And unlike the case of a cisgender boy, excluding B.P.J. from the girls’ teams excludes her from all athletic opportunity while stigmatizing and separating her from her peers.
Potential local impact
The issue of transgender athletes competing in girls’ and women’s sports has been a key focus of President Donald Trump’s domestic agenda.
Last year, he signed an executive order aimed at keep trans athletes out of women’s and girls’ sports. Shortly after, the Department of Education launched an investigation into the Massachusetts Interscholastic Athletic Association over alleged Title IX violations involving the participation of trans athletes. Foxborough Public Schools was one of 18 institutions the DOE announced they were investigating last week on similar grounds.
Erchull is an attorney on a case in New Hampshire where two students are currently trying to push back on a state law that prohibits transgender girls from participating in school sports.
He’s been watching the Supreme Court cases closely. And while there’s a lot on the line, he also pointed out that the questions in these cases are about statewide bans and whether or not those are unconstitutional.
”But it doesn’t seem like the Supreme Court is poised at all to decide about whether states that have permissive policies are somehow violating the rights of other students or anything like that,“ Erchull said.
Still, what the Supreme Court says matters. And the case Erchull is trying in New Hampshire is currently on pause pending the outcome of the Supreme Court’s decisions.
