Supreme Court agrees to review bans on transgender athletes joining teams that align with their gender identity

By John Fritze and Devan Cole, CNN

(CNN) — The Supreme Court on Thursday agreed to decide whether states may ban transgender students from playing on sports teams that align with their gender identity, revisiting the issue of LGBTQ rights in a blockbuster case just days after upholding a ban on some health care for trans youth.

The decision puts the issue of transgender rights on the Supreme Court’s docket for the second year in a row and is by far the most significant matter the justices have agreed to hear in the term that will begin in October.

In a significant loss for transgender advocates, a 6-3 majority of the Supreme Court ruled on June 18 that Tennessee could bar trans youth from accessing puberty blockers and hormone therapy. Though the state’s law also bars surgeries, they were not at issue in the high court’s case.

The court is likely to decide the case by early next summer.

The court’s decision landed as transgender advocates are still reeling from the 6-3 ruling in US v. Skrmetti, which upheld Tennessee’s ban on some gender identity care for trans minors. But that decision was limited to questions of whether the state had the power to regulate medical treatments for minors, leaving unresolved challenges to other anti-trans laws.

Cases challenging sports bans in two states

The justices agreed to review two cases challenging sports bans in Idaho and West Virginia. The court didn’t act on a third appeal over a similar ban in Arizona.

The American Civil Liberties Union, which is part of the legal team representing the athletes in the cases, said school athletic programs should be accessible to everyone regardless of a student’s sex or transgender status.

“Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth,” said Joshua Block, senior counsel for the ACLU’s LGBTQ & HIV Project. “We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”

West Virginia Attorney General JB McCuskey said in a statement, meanwhile, that the state is “confident the Supreme Court will uphold the Save Women’s Sports Act because it complies with the US Constitution and complies with Title IX.”

Republican-led states and President Donald Trump have pushed for policies to curtail transgender rights. Trump ran for reelection in part on a campaign to push “transgender insanity” out of public schools, mocking Democratic candidate Kamala Harris in advertising for supporting “they/them,” the pronouns used by some transgender and nonbinary people.

But even before that, states had passed laws banning transgender girls from playing on girls’ sports teams. Roughly half of US states have enacted such laws.

The Trump administration has actively supported policies that bar transgender athletes from competing on teams that match their gender identity. On Wednesday, the federal government released $175 million in previously frozen federal funding to the University of Pennsylvania after the school agreed to block transgender athletes from female sports teams and erase the records set by swimmer Lia Thomas.

In West Virginia, former Gov. Jim Justice, a Republican, signed the “Save Women’s Sports Act” in 2021, banning transgender women and girls from participating on public school sports teams consistent with their gender identity. Becky Pepper-Jackson, a rising sixth grader at the time, who was “looking forward to trying out for the girls’ cross-country team,” filed a lawsuit alleging that the ban violated federal law and the Constitution.

The Richmond-based 4th US Circuit Court of Appeals ruled last year that West Virginia’s ban violated Pepper-Jackson’s rights under Title IX, a federal law that prohibits discrimination on the basis of sex at schools that receive federal aid. The court also revived her constitutional challenge of the law.

“Her family, teachers, and classmates have all known B.P.J. as a girl for several years, and – beginning in elementary school – she has participated only on girls athletic teams,” US Circuit Judge Toby Heytens, who was nominated to the bench by President Joe Biden, wrote for the court. “Given these facts, offering B.P.J. a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all.”

Most of the appeals on the issue of transgender athletes question whether such bans are permitted under the equal protection clause of the 14th Amendment. The West Virginia case was different in that it also raised the question of whether such bans violated Title IX. The Supreme Court often prefers to settle a dispute under a law, rather than the Constitution, if it has the option because such a ruling technically allows Congress to change the law in response to the decision.

West Virginia appealed to the Supreme Court last year, arguing that the appeal court decision “renders sex-separated sports an illusion.”

“Schools will need to separate sports teams based on self-identification and personal choices that have nothing to do with athletic performance,” the state said.

West Virginia initially brought the case to the Supreme Court last year on an emergency basis, seeking to enforce the law against Pepper-Jackson while the underlying legal challenge played out. In an unsigned order, the court declined that request. Conservative Justices Clarence Thomas and Samuel Alito said they would have granted it.

In Idaho, Republican Gov. Brad Little signed the state’s sports ban in 2020, the first of its kind in the nation. Lindsay Hecox, then a freshman at Boise State University, sued days later, saying that she intended to try out for the women’s track and cross-country teams and alleging that the law violated the 14th Amendment’s equal protection clause.

A federal district court blocked the law’s enforcement against Hecox months later and the San Francisco-based 9th US Circuit Court of Appeals affirmed that decision last year. Idaho appealed to the Supreme Court in July.

“Women and girls have fought for decades to achieve an equal playing field. Nowhere has that been more evident than in sports,” the state told the high court in its appeal. “These spaces are now vanishing. The last decade has exhibited a growing trend of males identifying as females competing against—and beating—females in women’s sports across the country.”

This story has been updated with additional information.

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