The Supreme Court heard oral argument today in Little v. Hecox and West Virginia v. BPJ, a pair of cases about state laws that prohibit transgender women and girls from playing school sports on women’s and girls’ teams.
Such laws, now on the books in 27 states, emerged out of an ongoing, comprehensive assault on the rights of trans people nationwide. Over the past six years, Republican lawmakers have introduced upwards of 2,600 bills to censor discussions about LGBTQ people in classrooms, ban gender-affirming healthcare, restrict trans people’s access to bathrooms, and more. And a leading right-wing group behind the trans sports bans admits that the bans are not about sports, but about stopping the so-called “gender ideology movement.” The cases before the Court today are thus plainly entwined with the broader political battle over trans equality.
Unless, of course, you’re a Republican justice on the Supreme Court, in which event you’ll probably claim to not know what the fuss is about. On Tuesday, lawyers for state lawmakers in Idaho and West Virginia contended that trans sports bans do not discriminate based on transgender status; they merely require schools to designate teams “based on biological sex,” and to provide that girls’ sports “shall not be open to students of the male sex.” And multiple Republican justices happily entertained the argument, asking mind-numbing questions that ignored the plain function of the laws. In doing so, the justices steered clear of any responsibility for protecting the right of trans people to be free from discrimination.
Justice Amy Coney Barrett suggested that the bans didn’t really turn on transgender status because the bans only affect trans girls. “Since trans boys can play on boys’ teams,” she asked, “how would we say this discriminates on the basis of transgender status when its effect really only runs towards trans girls and not trans boys?” Kathleen Hartnett, one of the lawyers for the transgender plaintiffs, reminded Barrett that the Court has never found that a statute doesn’t classify just because it applies to a particular subset of the class. Presumably, Barrett would understand that a law that singled out white women would be sex-based discrimination, even if women of color were left out of it.
Justice Brett Kavanaugh latched on to the absence of the word “transgender” in Idaho’s statute, and asked Idaho Solicitor General Alan Hurst if his constitutional position would be different if the law more explicitly discriminated against trans people—for example, if it said that “transgender women and girls, biological males who identify as female, cannot play in women’s and girls’ sports.” But Hurst said that that would be fine, too, and that “the mere presence of the word ‘transgender’ in the statute is not enough to make it a transgender-based classification.”
To support his argument, Hurst pointed to Chief Justice John Roberts’s majority opinion in United States v. Skrmetti. In that case, Roberts reasoned that bans on gender-affirming care for trans youth didn’t classify based on transgender status, but on age and medical use of the treatment. Answering Kavanaugh, Hurst argued that trans sports bans can similarly “reference” transgender identity without “turning on” it. To a normal person, this sounds like a joke, but it commanded a majority of the Court just last year, and Kavanaugh did not push any further.
Not all of the Court’s precedents are as useful for proponents of trans sports bans as Skrmetti: In 2019, the Court held in Bostock v. Clayton County that firing an employee for being trans constitutes sex-based discrimination, which could have posed a problem for Republican lawmakers. But as he did in Skrmetti, at oral argument, Roberts was happy to help by parsing language into meaninglessness: Although the Court held in Bostock that “discrimination on the basis of transgender status is discrimination on the basis of sex,” said Roberts, the question in Hecox and BPJ is “whether or not a sex-based classification is necessarily a transgender classification.” Apparently, for Roberts, legislating based on sex assigned at birth may not count as legislating based on sex.
The laws at issue in Hecox and BPJ are not subtle, and for the Democratic justices, lawmakers’ efforts to disclaim anti-trans discrimination defied belief. “I’m struggling to understand how you can say that this law doesn’t classify on the basis of transgender status,” said Justice Ketanji Brown Jackson. “The law expressly aims to ensure that transgender women can’t play on women’s sports teams.”
Justice Sonia Sotomayor also asked Hurst about the Republican lawmakers who said the quiet part out loud: “What do you do with the legislative history in this case where the people who introduced the bill called it a ‘transgender bar’?” As the Ninth Circuit documented, Representative Barbara Ehardt indeed called the law a “preemptive strike” to “replace” transgender women with “the young gal that should have been on the team.” Anti-trans lawmakers understand that they are passing anti-trans legislation, even if Brett Kavanaugh does not.
Oral argument in Hecox and BPJ was an hours-long exercise in missing the point. The cases before the Supreme Court today are about more than the composition of school sports teams. They could give Republican lawmakers the legal permission they crave to legislate trans people out of public life. The conservative justices are pretending that is not what’s happening so that they don’t have to do anything about it.
