No issue is more at the center of the culture wars than whether state governments can prohibit transgender athletes from competing on sports teams that correspond to their gender identities. But as a matter of law, the answer should be clear that such discrimination is not allowed. On Tuesday, January 13, the Supreme Court will hear oral arguments in two cases – Little v. Hecox and West Virginia v. B.P.J. – that pose this issue. Ultimately, the question is whether the Court’s conservative majority will transcend the culture wars, follow precedent, and thus agree with the lower courts that struck down these statutes.

Little v. Hecox involves Lindsay Hecox, a 24-year-old transgender woman who wanted to try out for the women’s track and cross-country teams at Boise State University.  The Idaho Fairness in Women’s Sports Act prohibits transgender girls and women from participating in girls’ and women’s sports in public K-12 schools and universities, requiring teams to be designated by biological sex (male, female, co-ed).  Hecox challenged the law and the federal court of appeals ruled in her favor, though she now urges the Supreme Court to dismiss the case as moot because she no longer wishes to compete and does not plan to do so in the future.

West Virginia v. B.P.J. involves a challenge to a West Virginia law, the Save Women’s Sports Act, which like the Idaho law bars transgender girls and women from participating in sports that correspond with their gender identity. The challenger is a 15-year-old transgender girl who wanted to participate in sports in middle school. B.P.J. has publicly identified as female since the third grade, takes medicine to stave off the onset of male puberty, and also has begun to receive hormone therapy with estrogen.  The federal court of appeals ruled in her favor.

The cases come to the Supreme Court in the context of President Trump’s constant efforts to deny the existence of transgender individuals and to encourage discrimination against them. On the day of his inauguration, January 20, President Trump issued Executive Order No. 14168, characterizing transgender identity as “false” and “corrosive” to American society. The order asserted that “the policy of the United States” is “to recognize two sexes, male and female,” which it defined based on the sex assigned “at conception.”  He has barred transgender individuals from serving in the military and required that passports designate a person’s birth sex, not their gender identity. At Trump’s urging, the NCAA no longer allows transgender women to  compete in women’s sports, limiting women’s competition to those assigned female at birth.

I fear that the six conservative justices will look at this issue in this political context. They certainly did in June, when in United States v. Skrmetti, the Supreme Court in a 6-3 decision upheld a Tennessee law that prohibited gender affirming care for transgender youth.

In doing so, the Supreme Court failed to follow its decision in 2020, in Bostock v. Clayton County, Georgia, which held that discrimination in employment based on gender identity is sex discrimination that violates Title VII of the 1964 Civil Rights Act.  Bostock involved three cases that came to the Court together. Two involved gay men who were fired when their employer learned their sexual orientation.  One involved Aimee Stevens, a funeral director at Harris Funeral Homes, who was fired after transitioning.  The issue before the Court was whether discrimination based on gender identity or sexual orientation is “sex discrimination.”

The Court’s holding was clear and emphatic. Justice Gorsuch, writing for the Court, declared: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.  We do not hesitate to recognize a necessary consequence of that legislative choice:  an employer who fires an employee merely for being gay or transgender defies the law.”  The Court’ powerfully concluded that “[i]t impossible to discriminate against a person for being homosexual or transgender without discriminating against the individual based on sex.” 

 Justice Gorsuch’s majority opinion stressed the plain meaning of the prohibition of discrimination “because of sex” in Title VII.  A simple example illustrates the basis for this conclusion. Imagine an employee named Chris who never has met the employer. Chris and the employer communicate by text and email, but never have met in person or talked by phone. Chris often has referred to a husband in discussing evening or weekend plans. When Chris and the employer meet, the employer is surprised that Chris is male.  The employer fires Chris, saying that he does not want to employ gay people. If Chris were female, Chris would still have the job.  That, by definition, is employment discrimination because of sex. 

Likewise, Justice Gorsuch said that Aimee Stevens would have continued to have the position as a funeral director at Harris Funeral Homes if Stevens were male, but lost the job for being female. That, too, is employment discrimination because of sex.

Although Bostock was about Title VII, its reasoning should decide the transgender athlete cases before the Supreme Court.  One issue, raised explicitly in West Virginia v. B.P.J., is whether the state law violates Title IX of the Civil Rights Act, which prohibits discrimination “under any education program” “on the basis of sex.”  This seems indistinguishable from Title VII which prohibits discrimination “because of . . . sex.”  The simple reality is that B.P.J. was excluded from the middle schools girls’ teams solely because she was  assigned male at birth.

Another issue in the cases before the Supreme Court is whether discrimination based on gender identity should be regarded as sex discrimination under the Constitution.  The Supreme Court has said for half a century that the government can discriminate based on sex only if it can prove that its action is substantially related to an important government interest.  Bostock explicitly said that discrimination based on gender identity is discrimination because of sex; there is no reason that is different when the analysis under the Equal Protection Clause of the Fourteenth Amendment. 

Idaho, echoing President Trump, argues in its brief that there are two sexes, male and female, determined by what is assigned at birth and by reproductive organs.  But Bostock implicitly rejects this view by recognizing gender identity and holding that discrimination based on it is sex discrimination.

The briefs by Idaho and West Virginia, and those supporting its position, make the argument that banning transgender girls and women from competing is necessary to protect girls and women’s sports.  The briefs on the other side strongly dispute this and argue that transgender girls and women who receive puberty blocking and cross-sex hormones do not have a competitive advantage in sports.  But that is a factual question to be litigated in the federal district courts, not to be resolved by the United States Supreme Court.  In Hecox, the district court said that there is “dearth of evidence in the record to show excluding transgender women from women’s sports supports sex equality, provides opportunities for women, or increases access to college scholarships.”

 Since Bostock, the Court’s conservative majority has been unreceptive to claims of discrimination brought by transgender individuals.  In addition to upholding the Tennessee law prohibiting gender affirming care in Skrmetti, last year the Court, in 6-3 rulings on its emergency docket, upheld the Trump ban on transgender individuals serving in the military (United States v. Shilling) and the State Department rule requiring passports to list a person’s assigned sex at birth (Trump v. Orr).

Are these rulings a precursor to how the Court will rule in Little v. Hecox and West Virginia v. B.P.J.?  Or will the Court follow its precedent in Bostock, apply decades of decisions that require judicial protection of historically discriminated-against groups, and hold that discrimination against transgender individuals is illegal and unconstitutional?  Simply put, can the conservative justices transcend the partisan noise and follow the law?