Supreme Court Weighs Future of Women’s Sports

This week, the Supreme Court engaged in discussions surrounding pivotal cases that could shape the landscape of women’s sports, with a central and contentious question lingering: “What is a woman?”

The cases, Little v. Hecox and West Virginia v. BPJ, garnered extended debates, exceeding three hours of back-and-forth between justices and attorneys, emphasizing intricate legal standards.

Across the nation, the situation is stark. An increasing number of biological boys identifying as transgender girls is now participating in women’s sports, leading to situations where female athletes often lose competitions, scholarship opportunities, and sometimes even face physical risks posed by stronger competitors.

A recent UN report noted that as of August 2024, over 600 female athletes are competing in more than 400 sports globally, citing a loss of more than 890 medals in 29 sports to individuals who identify as women. This has prompted more than half of U.S. states to enact laws to safeguard women’s sports through gender-based participation rules.

In court, two significant questions were posed. Idaho’s case questioned whether laws aimed at protecting women’s sports by regulating participation based on gender violate the Equal Protection Clause of the Fourteenth Amendment. Meanwhile, West Virginia’s case inquired if Title IX would prevent states from consistently assigning sports teams based on biological sex.

Idaho was the first state to introduce the Fairness in Women’s Sports Act in 2020, which ties athletic participation to biological sex from elementary through college levels. This law came about when Lindsay Hecox, a biological male athlete identifying as a transgender woman, sought to compete on Boise State University’s women’s teams and later filed a lawsuit claiming the law was unconstitutional. The 9th Circuit Court ruled against enforcing the law, though Hecox attempted to dismiss the case, a request that was denied.

In 2023, West Virginia enacted the Save Women’s Sports law, which faced litigation before it could take effect. BPJ, an 11-year-old biological male identifying as female, initiated a lawsuit that halted the law’s enactment. Testimonies indicated that BPJ defeated several female athletes in track and field, resulting in five female athletes declining to compete alongside BPJ. Former women’s soccer player Laney Armistead intervened to support the state law, even as the Fourth Circuit blocked its enforcement.

Much of the discourse during Idaho’s proceedings revolved around the law’s classification criteria. The state argued its law was based on biological sex, aiming for fairness and safety, while opponents contended it unjustly barred transgender girls from competing, warranting stricter judicial scrutiny.

This discussion became quite complex, with Justice Samuel Alito questioning an ACLU attorney on the classification process, highlighting that state laws treat all biological males uniformly, thus raising questions of fairness.

Justice Ketanji Brown Jackson seemed to favor a nuanced approach, suggesting a case-by-case evaluation for exceptions to permit transgender students without disadvantaging others. The cases involved athletes using hormonal treatments, though states maintained that such measures don’t eliminate biological advantages.

Interestingly, Justice Neil Gorsuch also appeared open to the claims of transgender athletes, although later he noted that Title IX’s historical context makes it a unique issue, differentiated from Title VII’s employment laws.

Justice Alito probed deeper into the classification debate, pondering how courts could ascertain discrimination if the definition of ‘sex’ remains ambiguous. A lawyer representing a transgender athlete in Idaho reiterated an earlier request for case dismissal, capturing Justice Sonia Sotomayor’s interest, though her participation during the hearings was surprisingly limited.

Discussions on Title IX resurfaced, with West Virginia asserting that its law aligns with the spirit of Title IX, promoting equality for biological boys and girls in sports. Transgender advocates argued that the Sports Act contradicts Title IX by discriminating against athletes based on gender identity.

Chief Justice John Roberts expressed doubt about finding discrimination without a clear definition of ‘sex’, reflecting a sentiment echoed by Justice Alito, who warned against undermining women’s protections established by Title IX in the name of a more flexible approach.

As the hearings concluded after over three hours, it became evident that the Supreme Court, which usually renders decisions on significant cases by June, may lean towards the protection of female athletes. Yet, the extent of their ruling and its implications for defining what it means to be a woman remain unresolved.