Supreme Court agrees to hear cases on transgender athletes

Just over two weeks after the Supreme Court upheld Tennessee’s ban on the use of puberty blockers and hormone therapy for transgender minors, the justices agreed to take up another high-profile issue involving transgender people – specifically, the constitutionality of laws that bar transgender women and girls from participating on girls’ and women’s sports teams. In a list of orders released on Thursday morning, the court granted a pair of petitions filed by Idaho and West Virginia, seeking review of lower-court rulings that barred them from enforcing such laws.

Idaho was the first state to enact such a ban in 2020. Lindsay Hecox, a transgender woman who wanted to try out for the Boise State University women’s track and cross-country teams, went to federal court in April 2020 to block the state from applying the ban to her. She argued that the Idaho law violates both Title IX, a federal civil rights law that bars sex discrimination in educational programs and activities that receive federal funding, and the Constitution’s guarantee of equal protection.

A federal district court agreed that Hecox was likely to succeed on her claims and barred the state from enforcing the law against her. The U.S. Court of Appeals for the 9th Circuit upheld that ruling, agreeing that the law likely violates the Constitution.

In its petition for review in the Supreme Court, the state told the justices that its law was intended to ensure that “women and girls are not forced to compete against men and boys who benefit from the ‘enduring’ ‘physical differences between men and women.’” It urged the court to grant review and “decide whether the Constitution prohibits the people’s elected representatives in half the states from relying on sex-based distinctions to save women’s sports.”

Hecox, who did not make Boise State’s NCAA cross-country and track teams but competes in club sports at the school, told the justices in her brief that Idaho is trying to “create a false sense of national emergency when nothing of the sort is presented by [her] case.” She urged the justices to wait to act on her case until after they issued their ruling in United States v. Skrmetti, the challenge to Tennessee’s ban on certain forms of medical treatment for transgender youth; at that point, Hecox said, the court could either deny Idaho’s petition for review or send it back to the lower court. If there are still “unresolved issues in the context of athletics,” she emphasized, there will be other, better opportunities for the justices to decide these questions.

B.P.J., the transgender athlete at the center of the West Virginia case, is a 14-year-old who has publicly identified as a girl since the third grade and takes medicine to stave off the onset of male puberty. She has also begun to receive hormone therapy with estrogen.

B.P.J.’s mother, Heather Jackson, went to federal court when the principal at B.P.J.’s middle school told the family that her daughter would not be allowed to participate on the girls’ sports teams because of a West Virgina law “banning girls who are transgender from participating on all girls’ sports teams from middle school through college.” Like Hecox, Jackson argued that the state’s law violated both Title IX and the Constitution.

A federal district court in West Virginia agreed that Jackson and B.P.J. were likely to succeed on their claims and temporarily ordered the state to allow B.P.J. to compete. But U.S. District Judge Joseph Goodwin later ruled for the state on summary judgment. The U.S. Court of Appeals for the 4th Circuit put that decision on hold, and in April 2023 the Supreme Court rejected the state’s request to be allowed to enforce the law while the case continued in the lower court.

Justice Samuel Alito (joined by Justice Clarence Thomas) dissented from the court’s order denying the state’s request, calling the issue in B.P.J.’s case “important” and one that the justices “are likely to be required to address in the near future.”

A divided 4th Circuit ruled in April 2024 that the law violates Title IX by discriminating against B.P.J. on the basis of sex. That prompted the state to come to the Supreme Court last summer, asking the justices to weigh in. It contended that the 4th Circuit’s decision “upends the Title IX and equal-protection frameworks” and “tacitly overturns countless cases upholding sex distinctions for bathrooms, prisons, physical-fitness tests, and more.” The ruling also “renders sex-separated sports an illusion,” the state argued, requiring schools to “separate sports teams based on self-identification and personal choices that have nothing to do with athletic performance.”

B.P.J. and Jackson urged the justices to deny review and leave the lower court’s ruling in place – or, at the very least, wait until after they acted on the court’s decision in Skrmetti. There is no “independent basis” for the court to intervene in this case, they wrote, which merely addresses the application of West Virginia’s law to “one transgender girl who is too slow to make her school’s track team and who has been working hard to learn and improve in field events.” 

On Thursday, the court also granted a petition for review filed by an evangelical Christian who seeks to bar a Mississippi city from enforcing an ordinance regulating protests and demonstrations around the city’s amphitheater. Gabriel Olivier brought the challenge under federal civil rights laws, arguing that the ordinance violates the First and 14th Amendments, after he pleaded no contest to violating the ordinance and received a suspended sentence of 10 days in prison and a fine.

The city argued that Olivier’s request to block the enforcement of the ordinance was forestalled by the court’s decision in Heck v. Humphrey, holding that a defendant cannot seek damages for an allegedly unconstitutional conviction or sentence unless he can show that the conviction or sentence has been overturned.

The U.S. Court of Appeals for the 5th Circuit agreed. It rejected Olivier’s contention that he could overcome the bar set in Heck because he was seeking prospective relief – that is, to keep the ordinance from being applied to him in the future – rather than to invalidate his past conviction. Olivier came to the Supreme Court this spring, asking the justices to weigh in.

The justices will also hear argument in the fall in Galette v. New Jersey Transit Corp. and New Jersey Transit Corp. v. Colt, a pair of cases involving whether the New Jersey Transit Corporation – a public transportation corporation that provides rail, light rail, and bus services in New Jersey and parts of New York and Philadelphia – is an “arm of the state” of New Jersey and therefore cannot be sued in other states’ courts. The question comes to the court in lawsuits filed in Pennsylvania and New York by two people injured in accidents by New Jersey Transit vehicles.