Supreme Court considers challenges to laws banning transgender participation in sports
Becky Pepper-Jackson was assigned male at birth but began transitioning to a female gender identity in third grade. Her West Virginia school district has been sympathetic, providing a gender support plan that among other things respects her chosen name and pronouns.
When she entered middle school in 2021, Pepper-Jackson looked forward trying out for the girls’ cross-country team in the fall and later the track and field team.
“I just think I’m a girl, and I shouldn’t have to run with the boys,” she said in a 2022 deposition. “I should be able to run with the girls because I am a girl.”
But in 2021, West Virginia passed the Save Women’s Sports Act, a law that bars transgender girls and women from competing in female school athletics. The state was one of the first among the 27 that have adopted similar laws amid a backlash against transgender participation in female sports in recent years.
The intensity of public sentiment over the issue exploded during last year’s presidential campaign, followed by President Donald Trump’s signing of an executive order in February titled “Keeping Men Out of Women’s Sports.” The NCAA and U.S. Olympic & Paralympic Committee pulled back from rules that permitted transgender women to compete in female sports.
Lindsay Hecox. (Photo courtesy of the ACLU)Amid that backdrop, the U.S. Supreme Court next week will take up Pepper-Jackson’s challenge to the legality of her state’s law in West Virginia v. B.P.J. as well as Little v. Hecox, which involves a similar Idaho statute that was challenged by a prospective female college athlete, Lindsay Hecox.
Both laws have been blocked by federal appeals courts—Idaho’s based on the 14th Amendment’s Equal Protection Clause, and West Virginia’s based on Title IX, the landmark gender equity legislation of 1972 barring sex discrimination in federally funded educational programs.
Pepper-Jackson won an injunction early on in her suit that has allowed her to participate in school sports. She was steered from running events—she just wasn’t fast enough—to discus and shot put, where she has shown talent.
But the high school sophomore has more than the 4-kilogram (almost 9-pound) shot on her shoulder has her case enters the nation’s highest legal arena.
“I feel very nervous, but I know that someone has to do it, because letting these awful laws and bills just stand is not something that should happen,” Pepper-Jackson says in a video produced by the American Civil Liberties Union, which represents her along with Lambda Legal and the law firm Cooley.
“I want other trans girls to know that they are not alone, and that I’m doing this for us,” she adds. “I really want them to have hope.”
Supreme Court had declined to overturn West Virginia case
Pepper-Jackson has plenty of supporters, but on the other side are the two states defending their laws, the Trump administration, cisgender female athletes who feel aggrieved by the participation of transgender girls and women in their competitions, and conservative groups that have challenged transgender rights on multiple fronts.
“Gender ideology hurts everyone, and we should be respecting biology, biological reality, not denying it,” says John J. Bursch, the vice president of appellate advocacy at Alliance Defending Freedom, the conservative legal organization that has been battling transgender rights for years and is assisting both Idaho and West Virginia in the high court. “When we use the fiction that [Pepper-Jackson] and Hecox are female athletes because they say that they are, it eliminates any reasonable way to talk about the case, which is male athletes who identify as women or girls competing in women’s sports.”
West Virginia Attorney General John B. McCuskey, a Republican, argues in a brief that his state’s law barring transgender females from girls’ and women’s sports “designates sports based on biological sex—exactly what Title IX permits.”
“Male athletes identifying as female are increasingly competing in women’s sports, erasing the opportunities Title IX ensured,” McCuskey said. “Women and girls have lost places on sports teams, surrendered spots on championship podiums, and suffered injuries competing against bigger, faster and stronger males.”
In 2023, the state asked the Supreme Court to reinstate the law after the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals had blocked it solely with respect to Pepper-Jackson. The court declined the state’s request, over the dissent of Justice Samuel Alito that was joined by Justice Clarence Thomas.
The case “concerns an important issue that this court is likely to be required to address in the near future,” Alito said, though he largely cited procedural reasons for his dissent. But in 2020 in Bostock v. Clayton County, when the court found that Tile VII of the Civil Rights Act of 1964 protected employees on the basis of sexual orientation and gender identity, Alito’s dissent (again joined by Thomas) said that allowing transgender students to participate in sports “previously reserved for members of one biological sex” threatens to “undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to participate in sports.”
The 4th Circuit last year ruled for Pepper-Jackson on her Title IX claim, holding that discrimination against transgender students is discrimination “on the basis of sex” under the federal statute.
The court remanded her equal protection claim for further consideration of a factual dispute about whether males who receive puberty blockers nevertheless retain “a meaningful competitive athletic advantage” over females. Pepper-Jackson began taking puberty-delaying medications in 2020, and she has never experienced elevated testosterone or physiological changes typical of male puberty.
Procedural questions over Idaho case
The Idaho case involves the state’s 2020 Fairness in Women’s Sports Act, which was challenged by Hecox, a transgender female who aspired to join the track team at Boise State University.
A panel of the San Francisco-based 9th U.S. Circuit Court of Appeals in 2024 upheld an injunction blocking the law as it applied to Hecox. The panel said the law likely violates the Equal Protection Clause, but it didn’t rule on a claim that it also violated Title IX.
In September, Hecox’s lawyers informed the court that she had voluntarily dismissed her case in the lower courts amid “significant challenges” that have included failure to make athletic teams at her college. Her lawyers agreed that the underlying 9th Circuit judgment in favor of Hecox should be vacated, and she asked the Supreme Court to dismiss its review of her case. But Idaho opposed the motion, saying “this case isn’t moot given the parties’ interests in the outcome and this court’s interest in preventing manipulation of its docket.”
The high court said it would defer a decision on Hecox’s request to oral argument.
On the merits, Idaho Attorney General Raúl R. Labrador, a Republican, argues in his brief that his state’s law “was motivated by physical and physiological differences between the sexes—not a desire to harm males who identify as women.”
Hecox, Labrador says, “wants to redefine ‘women’ based on gender identity rather than biology. But in sports, biology matters, not gender identity.”
Agreement that cases are consequential
Joshua A. Block, a senior counsel with the ACLU who will argue on behalf of Pepper-Jackson, acknowledges in an interview that he faces an uphill fight given the political context surrounding transgender rights and the Supreme Court’s decision last term in United States v. Skrmetti, which upheld a Tennessee law barring certain gender-transition medical treatments for transgender minors.
“It’s no secret that the past two years have been really devastating in terms of the rights of trans folks,” he says. “There have been a lot of attempts to roll back equality and roll back health care that had never before been previously politicized in that way.”
Block says Idaho and West Virginia want to use these cases “as a jumping-off point for some sort of sweeping ruling, saying that discrimination against transgender people doesn’t get heightened scrutiny and should be treated as presumptively constitutional” as well as compliant with Title IX.
“We’re gonna be pushing back against efforts to try to use this case as a vehicle for dismantling the rights of transgender people,” Block says.
Still, some of his allies are worried about how the court will rule.
“I’ll just be candid—most knowledgeable observers do not expect the transgender athletes to win this case, and that’s not for legal reasons, that’s for realpolitik reasons,” says Katie Eyer, a Rutgers Law School professor who co-wrote an amicus brief in support of the transgender athletes. “The court seems fairly determined [to rule against them] even where the law points in a contrary direction.”
Suzanne Goldberg, a Columbia University law professor who also co-wrote a brief in support of Pepper-Jackson and Hecox, says there are only a handful of transgender girls and women nationwide seeking to participate in female sports, yet the court’s decision will affect transgender people generally and have other wider implications on anti-discrimination law.
“The human and legal stakes are high,” she says.
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