CNN
CNN
By John Fritze, Devan Cole, CNN
(CNN) — The Supreme Court’s conservative majority indicated Tuesday it is likely to side with two states that have enacted bans on transgender athletes playing on girls’ sports teams, delving into a divisive culture war dispute that could have implications far beyond sports.
For over three hours, the justices waded through exceedingly technical debates and hypotheticals as they tried to assess whether the bans enacted by Idaho and West Virginia are consistent with the 14th Amendment or a landmark 1972 law that bars discrimination in schools. The court’s decision could affect similar laws in more than half the country.
“I hate – hate – that a kid who wants to play sports might not be able to play sports,” said Justice Brett Kavanaugh, who then quickly added that if a transgender girl makes a competitive team, that might bump a cisgender girl from the roster. “It’s kind of zero-sum game for a lot of teams.”
Even as the court’s conservatives seemed sympathetic to the states’ bans, several expressed concerns about potential spillover effects of a decision in their favor beyond athletics. Some seemed to be searching for a way to side with the states that would limit that potential impact.
Here are five takeaways from the arguments:
Conservatives raise fairness questions
Several conservative justices seized on language and themes that have punctuated the national debate around whether trans athletes had an unfair advantage, another sign of their readiness to back the state bans.
Kavanaugh, who for years coached his daughter’s basketball team and emphasized that during his contentious confirmation hearings, was especially sympathetic to arguments from the states that the restrictions are needed to ensure cisgender women and girls don’t face a “harm” resulting from having to compete against trans athletes.
“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,” said Kavanaugh, who was appointed to the high court by President Donald Trump in 2018.
The conservative justice and occasional swing vote went on to note that states, the NCAA and the US Olympic Committee have all concluded that allowing trans athletes to compete “will create unfairness.” (Some of those decisions were made in response to an executive order signed by Trump.)
“For the individual girl who does not make the team or doesn’t get on the stand for the medal, or doesn’t make all-league, there’s a harm there, and I think we can’t sweep that aside,” Kavanaugh said.
But such claims have long been disputed by opponents of the bans, who point to the fact that some trans athletes, like the one at the center of the West Virginia case, have never undergone male puberty and thus don’t possess the type of physical attributes that would allegedly put them at an unfair advantage.
Zeroing in on the political atmospherics around the issue, Justice Samuel Alito pointedly asked an attorney representing the athlete who sued Idaho over its ban whether “female athletes who are strongly opposed to participation by trans athletes in competitions with them” are “bigots.”
“Are they deluded in thinking that they are subjected to unfair competition?” Alito asked attorney Kathleen Hartnett.
Responding to the thorny question, Hartnett told Alito that her client’s underlying claims did not have to do with “animus.”
Bostock begone
In one of the more remarkable moments from the arguments, Chief Justice John Roberts quickly sought to distinguish the sports cases from a 2020 precedent that protects gay and transgender employees from workplace discrimination. By doing so, he eviscerated a central argument that had been raised by the American Civil Liberties Union and other lawyers challenging the bans.
Even before the Supreme Court agreed to hear the cases – one from Becky Pepper-Jackson, a West Virginia high school student, and the other from Lindsay Hecox, a senior at Boise State University – there was a fundamental question about how the justices would address the 2020 decision in Bostock v. Clayton County, the last major win for transgender advocates at the court.
In Bostock, the court ruled that the prohibition on discrimination in the workplace on the “basis of sex” required by Title VII necessarily protected transgender Americans. Why, civil rights attorneys asked, wouldn’t the same logic apply to Title IX, a federal law that bars discrimination “on the basis of sex” in schools?
In a few words, Roberts suggested there wasn’t a connection at all.
“In terms of Bostock, I understand that to say that discrimination on the basis of transgender status is discrimination on the basis of sex,” said the chief justice, who was in the majority in the landmark 2020 opinion. “But the question here is whether or not a sex-based classification is necessarily a transgender classification.”
Justice Neil Gorsuch, a conservative who wrote the Bostock opinion for the court, also at times seemed prepared to draw a distinction between the cases. He based that line of questioning partly on a 1974 law, known as the Javits Amendment, that spelled out how Title IX would apply in sports. The states argue the amendment effectively authorized the creation of separate sports teams based on sex.
“Why,” Gorsuch asked, doesn’t that amendment “make this case very different than Title VII?”
Uncertain science and Skrmetti
Just like in the last major transgender appeal the Supreme Court decided, a substantial portion of the argument was focused on uncertain science.
In that case, US v. Skrmetti, a 6-3 majority in June left it to the states to decide how to hash out the complicated scientific issues of puberty blockers and hormone therapy for minors. That reasoning had the effect of upholding bans on that care enacted by Tennessee and other conservative states.
Throughout the arguments Tuesday, the justices similarly wrestled with the question of whether transgender girls like Pepper-Jackson, who have taken hormone therapy, really have some inherent advantage in sports just because they were born male. If they do not, then the states’ justification for their laws falls apart.
But in the absence of certainty, or something close to it, at least a few justices suggested support for allowing states to make their own rules for the moment.
“Given that half the states are allowing it – allowing transgender girls and women to participate – 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,” Kavanaugh said at one point.
Liberals search for a limited way out
At times, the court’s three-justice liberal wing appeared to be trying to limit the potential impact of a loss for the transgender students.
With the court appearing ready to side with the states, the three voiced concerns about the possibility of a broad ruling that would not only uphold the bans but also prevent athletes looking to challenge them from getting courts to block the laws on a case-by-case basis.
Those types of lawsuits, as-applied challenges brought under the equal protection clause, are what the two athletes at the center of Tuesday’s cases filed against officials in their respective states. They typically are easier to win than broad attacks on a law, known as facial challenges.
“Justice Barrett is worried, I think she said, about the implications of allowing as-applied challenges. I guess I am worried about the implications of not,” said Justice Ketanji Brown Jackson as she questioned a Trump administration attorney who was arguing in favor of limits on a litigator’s ability to bring such a challenge.
Lawyers for trans students suggest building out factual record
Appearing to recognize how devastating a broad ruling from the court could be to efforts to block sports bans on an individual basis, both Hartnett and Joshua Block, an attorney for Pepper-Jackson, urged the justices to send the cases back down to lower courts for a more thorough factual record to be developed – particularly on the question of whether transgender girls have some inherent advantages on girls teams.
That record, they argued, may in the end result in favorable rulings for their clients.
The outcome would be a win for the states, but it would allow civil rights groups to continue to fight the case.
Pepper-Jackson, Block noted, never went through male puberty. The 4th US Circuit Court of Appeals decided for her on other grounds and said that point was immaterial.
“So your argument depends on her not having a competitive advantage,” pressed Justice Elena Kagan, a member of the court’s liberal wing.
Block agreed.
“If they’re right about the facts, then we should lose,” Block said of the states and the importance of giving more review to the factual questions in the case. “This is an important issue. It may affect the whole country. And the court wants to get it right.”
The justices are expected to hand down a decision by the end of June.
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Rep. Barbara Ehardt attended the U.S. Supreme Court hearing over her law on Tuesday for Little v. Hecox in Washington, D.C.
