Supreme Court's Stance May Hinder Transgender Rights Progress

Trans athletes have always faced significant challenges in the judicial landscape.

Hope was slim from the outset for supporters of transgender women athletes in the recent Supreme Court hearings. The court, dominated by a 6-3 Republican majority, reviewed cases determining whether trans women should be permitted to compete in female high school and collegiate sports teams. Even if the court did not have a majority, the existing legal framework is not particularly supportive of transgender women wanting to participate in gender-segregated sports.

The discussions around the cases Little v. Hecox and West Virginia v. B.P.J. provided little indication of an outcome favorable to the transgender athletes involved. Although, the case may be dismissed if Hecox, a college senior likely to stop playing sports, renders her claim irrelevant. Few justices showed interest in the most compelling legal points made by the plaintiffs, steering their inquiries instead towards unfamiliar and complex issues, with most signs pointing against the athletes’ favor.

Understanding the Legal Context

The Supreme Court’s most significant decision supporting transgender rights was Bostock v. Clayton County (2020), where it ruled that federal employment laws forbidding sex-based discrimination extend protections to transgender individuals.

The Bostock decision recognized that laws prohibiting sex discrimination address differences rooted in biological distinctions assigned at birth. Hence, a transgender employee must be afforded the same rights as a cisgender counterpart. However, this ruling has limited application in athletics because educational institutions are allowed to maintain gender-separate sports teams, unlike in employment law where sex-based discrimination is largely restricted.

For plaintiffs in the Hecox and B.P.J. cases, prevailing requires more than proving sex discrimination. They argue that constitutional protections should prevent public schools from discriminating based on gender identity. There was a lack of broad interest in this argument among the justices, most of whom framed the discussion in ways less advantageous to the plaintiffs.

Differentiating Race and Sex Discrimination

A comparison of legal approaches to race versus sex discrimination sheds light on why these cases might not favor transgender athletes. The 14th Amendment, primarily protecting former slaves from racial discrimination, has rarely relied on perceived racial differences to justify disparate treatment. This foundation ensures that race-discriminatory laws face intense legal scrutiny through 'strict scrutiny' standards.

Strict scrutiny demands that any race-based law must precisely and compellingly serve governmental interest, a standard few laws meet. Conversely, sex-based discrimination undergoes 'intermediate scrutiny,' a somewhat lenient test recognizing legitimate biological differences, thus allowing sex-segregated educational settings like sports teams and facilities.

While intermediate scrutiny requires laws to fulfill essential governmental objectives and relate significantly to those aims, it doesn’t impose the precise targeting demanded by strict scrutiny. This distinction presents challenges for transgender athletes.

Exploring Scrutiny Levels in Legal Challenges

A central focus of the hearings was whether a misclassified athlete could dispute their classification and be recognized as a woman. Under strict scrutiny, any misclassification could invalidate a law; however, intermediate scrutiny affords states more latitude.

Justice Barrett suggested that the absence of judicial precedent on misclassification challenges could stem from their place within the scope of intermediate scrutiny issues, as applying strict scrutiny would leave no room for misclassification.

The Republican majority justices appear reluctant to revisit classification laws, diminishing the possibilities for transgender women to contest their misclassified standing as men. Meanwhile, Chief Justice Roberts, historically supportive of trans rights, sees imposing strict scrutiny on such classifications as a departure from established precedents.

Justice Gorsuch emphasized intermediate scrutiny's role in allowing 'state leeway,' marking a possible continued obstacle for pro-trans rulings.

Given past support from justices Roberts and Gorsuch, their dissent against pro-trans decisions in these cases implies slim chances for favorable outcomes in Hecox and B.P.J. While deliberating these cases, the justices fixated on whether plaintiffs could challenge gender-based classifications effectively—a question seemingly concluding without advantage for transgender athletes.