There was never much reason to hope that the Supreme Court, which heard two cases on Tuesday asking whether transgender women have a right to play women’s high school or college sports, was going to side with those athletes. The Court has a 6-3 Republican majority. And, even if it didn’t, existing law isn’t particularly favorable to trans women seeking to play on a sex-segregated sports team.
Nothing said during Tuesday’s arguments in Little v. Hecox or West Virginia v. B.P.J. suggested that the athletes at the heart of these two cases are likely to prevail (although the Court may dismiss Hecox, because the plaintiff in that case is a college senior who does not intend to play sports for the rest of her time as a student, potentially making her case moot). Few of the justices appeared interested in the trans plaintiffs’ strongest legal arguments, and a surprising amount of the justices’ questions focused on a genuinely novel and difficult issue that most of the justices appeared likely to resolve against trans athletes.
The high-water mark for trans rights in the Supreme Court was Bostock v. Clayton County (2020), which held that a federal law banning employment discrimination “on the basis of sex” protects trans workers from discrimination.
Bostock assumed that laws barring “sex” discrimination bar only discrimination based on “biological distinctions between male and female” (that is, they forbid discrimination based on sex assigned at birth). But, that’s enough to protect trans workers. If a cisgender male worker may wear clothing associated with men, use a male name, and otherwise present as a man, then an “employee who was identified as female at birth” must also be allowed to do so.
The Bostock framework, however, does not help trans athletes, because the law generally permits public schools and universities to require men to play on one team and women on a separate team. Unlike the workplace, where sex discrimination is broadly prohibited, some forms of sex discrimination are allowed in competitive sports.
So, to prevail in Hecox or B.P.J., the plaintiffs must do more than show that they are victims of sex discrimination. Their best argument is that the Constitution also prohibits public schools from discriminating against people because they are transgender. But, only Justice Neil Gorsuch showed much interest in this argument. Instead, the other justices seemed to frame the case in a way that’s much less favorable to trans plaintiffs.
Typically, when a plaintiff alleges that a state law violates the Constitution’s guarantee that all people must enjoy “the equal protection of the laws,” they accuse the state of classifying people in unacceptable ways. The plaintiff in Brown v. Board of Education (1954), for example, was a Black girl who argued that states may not assign students to schools based on their race. The plaintiff in Craig v. Boren (1976), a seminal sex discrimination case, claimed that a state may not treat women differently than men.
But many of the justices who heard Hecox and B.P.J. seemed to view those cases differently. The plaintiffs in the trans sports cases are not claiming that states may not classify athletes based on their sex. Instead, they’re claiming that the state has wrongly classified them as men when they should be treated as women. It’s as if Linda Brown, the school segregation plaintiff, had argued that she is entitled to attend a white school, because she is actually white — or if Curtis Craig had argued that he is actually a woman.
As Justice Amy Coney Barrett pointed out, the Supreme Court hasn’t “really confronted” this question in the past. But most of the justices appeared to believe that, at least in a case about gender, states have some leeway to misclassify individuals as male or female.
The Court’s discrimination cases treat race discrimination differently than sex discrimination
To understand why Hecox and B.P.J. are likely to end badly for trans athletes, it’s helpful to first understand why Brown was a somewhat different case than Craig.
The 14th Amendment was enacted specifically to protect freed slaves from race discrimination, and there are almost no cases that turn on legitimate differences between, say, Black people and white people. For this reason, any law that discriminates based on race is subject to the most skeptical level of constitutional review — a test known as “strict scrutiny.”
To withstand strict scrutiny, the government must show that any law that discriminates on the basis of race is “precisely tailored to serve a compelling governmental interest.” Almost no laws survive strict scrutiny.
In Craig, the Supreme Court held that laws that discriminate on the basis of sex are also disfavored by the Constitution. But, there are also legitimate differences between the two sexes that sometimes justify discrimination. As already noted, public schools are allowed to have sex-segregated sports teams. They can also have sex-segregated bathrooms. And they can have different curriculums for male and female students, so long as those differences are rooted in legitimate biological distinctions. A middle school may choose to teach menstrual health to girls, for example, but not to boys.
Accordingly, laws that discriminate on the basis of sex are subject to a somewhat weaker test, known as “intermediate scrutiny,” than laws that discriminate on the basis of race. As the Court held in Craig, sex-based discrimination by the government “must serve important governmental objectives and must be substantially related to achievement of those objectives.”
To be sure, intermediate scrutiny is still a potent test, and most laws fail this test. The Court has held that “government action based on sex must establish an ‘exceedingly persuasive justification’ for the classification.”
But intermediate scrutiny does not require a law to be “precisely tailored” like strict scrutiny does. And that distinction puts trans athletes in a bind.
How strict scrutiny is different than intermediate scrutiny
Recall that Tuesday’s arguments seemed to focus on whether an athlete who the state has classified as a man can challenge that classification and be reclassified as a woman. If strict scrutiny applied, then the law would not be “precisely tailored,” if even a single student is misclassified. But intermediate scrutiny gives states just a little bit more leeway.
Indeed, as Barrett pointed out during the Hecox argument, it’s likely that the reason why the Court has never answered the question of whether a plaintiff can challenge how they are classified is because this is “really only an intermediate scrutiny problem.” If strict scrutiny applied, then a single misclassification would doom the law.
And there also didn’t appear to be much appetite, at least among the Court’s Republican majority, for allowing trans women to challenge their classification as a man. Chief Justice John Roberts, one of two Republican justices who joined the Court’s pro-trans decision in Bostock, accused the plaintiff’s lawyer in Hecox of “transforming intermediate scrutiny to strict scrutiny.”
Similarly, Gorsuch, the Republican author of Bostock, said, at one point, that the whole point of intermediate scrutiny is to provide “some leeway for the state.”
Given that Roberts and Gorsuch are the only Republican justices who have supported trans rights in the past, it’s hard to imagine the Court voting in favor of trans athletes without these two justices’ votes.
It is very likely, in other words, that Hecox and B.P.J. will end in a major loss for trans rights. The justices who heard these cases appeared to fixate on a question that the Court has not yet answered: Can a gender-based discrimination plaintiff challenge a state’s decision to classify them as male or female? And most of the justices appeared inclined to resolve that question in a way that does not help trans athletes.
