Although a majority appeared unlikely to strike down West Virginia and Idaho's bans, there also seemed to be interest in avoiding a final de
Chris Geidner at Law Dork:
A majority of the U.S. Supreme Court on Tuesday appeared likely to rule that the federal education law known as Title IX allows Idaho and West Virginia to ban trans girls from girls sports teams. Nonetheless, after nearly three-and-a-half hours of arguments between the Idaho and West Virginia cases, it seemed almost as likely that the court would issue a narrow ruling in the case — allowing those bans under Title IX of the Education Amendments Act of 1972 and a later amendment to the law but leaving open the questions of whether such bans violate constitutional equal protection guarantees and whether states that allow trans girls to participate in girls sports can do so under Title IX. In such a scenario, all would stay as it is today — with no constitutional ruling.
Despite the high-profile case — so prominent in discussions about political “culture war” issues — the arguments were a much more low-key affair and less combative than other recent trans-related arguments.
They were a far cry from the high-intensity arguments in the challenge to Tennessee’s ban on gender-affirming medical care for trans minors, the challenge to a Maryland school district’s decision not to allow parents to opt their children out of reading time that including LGBTQ-related books, or even the recent arguments over conversion therapy bans. (The Tennessee law was upheld, and the Maryland policy was struck down.)
In addition to questions from Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson that were skeptical of the two states’ arguments (and the Justice Department’s arguments backing the state bans), questions from Justices Neil Gorsuch and Amy Coney Barrett — and, to a lesser extent, Justice Brett Kavanaugh — suggested that the court might not be ready to issue a final, definitive ruling on the matter despite having granted review of the cases this past July.
It’s dangerous to read too much into arguments, and (again) it did appear that a majority of the court would allow trans sports bans to remain in effect for now, but there was a different tone on Tuesday — particularly among the younger Republican appointees. As Kavanaugh put it at one point to Kathleen Hartnett, the Cooley partner representing Lindsay Hecox, a trans college student in Idaho, “I think one of the themes of your argument has been the more people learn, the more they’ll agree with you.“
As the justices have been hearing more cases involving more stories of more trans people — and maybe even have encountered trans people outside of the antiseptic confines of court cases — perhaps the statement was more than just a theme of Hartnett’s argument.
On the Title IX question, the ACLU’s Joshua Block — arguing for Becky Pepper-Jackson, the trans girl at the center of the West Virginia case — explained, West Virginia’s argument that the court should hold that “this Court’s reasoning in Bostock [v. Clayton Country]” — the 2020 decision holding that the sex discrimination ban in Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation and transgender status — “does not apply to Title IX“ would “take[] a wrecking ball to the text of Title IX and the structure of this Court’s anti-discrimination precedents.”
And though Chief Justice John Roberts — who joined the majority opinion in Bostock — attempted to distinguish the ruling in that case from West Virginia’s ban in a discussion with West Virginia Solicitor General Michael Williams, the issue appeared to fall to the wayside throughout the day’s arguments. Instead, the 1974 Javits Amendment to Title IX — which specifically directed that “reasonable” sports-specific regulations be promulgated to advance Title IX — and those regulations loomed large in the arguments. Raised nearly two dozen times in the West Virginia arguments, Block explained that the Javits Amendment “provides extra breathing room for reasonable regulations that take into account sex-based differences in athletics to provide equal athletic opportunity for everyone.”
Although Block argued that West Virginia’s exclusion of Becky ran afoul of that “framework,” the amendment and regulations would provide a way to limit the decision and its impact to sports — a distinction that could be key following questioning from Barrett, later echoed by Kagan, about the effect of a decision upholding the bans on other educational activities, including academic instruction. While Kavanaugh appeared willing to allow the laws to proceed under Title IX, a ruling that could affect similar bans in 27 states, he also was focused on whether and how the court could ensure that the decision in these cases does not resolve the question for those 23 states that allow trans girls to compete in girls sports. Kagan, likewise noting that, asked the Justice Department’s lawyer, Hashim Mooppan, and Block about that.
[...] The Equal Protection Clause arguments, meanwhile, quickly got into the weeds over whether an as-applied equal protection challenge — as opposed to a facial challenge — can be brought at all based on the plaintiffs’ sex discrimination claims. If so, the arguments continued to delve into what such challenges look like when considered by courts, whether subgroups or individuals can bring them, and how big those subgroups must be if they must be subgroups. After significant debate on those fronts, it appeared that several justices were open to a way out of deciding that question now.
Although Kathleen Hartnett, a partner at the Cooley law firm, did an excellent job of getting through all of those weeds with smart arguments about how the court could address the issue in a way that would allow “transgender women who do not have an athletic advantage“ — because they have not yet gone through puberty, stopped the onset of puberty with puberty blockers, or are on hormone therapy treatment to suppress their testosterone — to succeed in an equal protection claim against Idaho, it seemed like there were as many views on how the court should resolve those questions as there are justices. There was also a secondary argument that transgender status is directly implicated, and — though it didn’t appear likely the court was ready to rule on the issue — Gorsuch raised the issue.
[...] In the Idaho case, the student, Lindsay Hecox, told the Supreme Court that she will not be participating in sports subject to Idaho’s ban while finishing college. Her lawyers have argued that, as such, the case is moot, prompting Sotomayor to ask Idaho Solicitor General Alan Hurst, “Would you say that we have to force an unwilling plaintiff who has offered to dismiss with prejudice, promised not to incur this activity again, we would force that person to continue prosecuting this case?“ Although Hurst responded that Hecox faces a “formidable burden” to show that it is “absolutely clear” that she won’t try to play on banned sports teams again, the Supreme Court — because it still has the West Virginia case — could hold that the Idaho case is moot.1
In the West Virginia case, meanwhile, the U.S. Court of Appeals for the Fourth Circuit only fully decided the Title IX claim, so the Supreme Court could rule on the Title IX question and remand the case for further consideration of the equal protection claim before needing to resolve that question. Although that might not have seemed to be a likely outcome going into arguments on Tuesday, the nearly three-and-a-half hours of arguments left a real impression that the justices might be wanting to slow down the path toward “constitutionalizing” these matters.
In a pair of trans sports cases heard at SCOTUS this week (Little v. Hecox and West Virginia v. B.P.J.), the MAGA Majority on SCOTUS is likely to rule in favor of permitting trans sports bans come June or July. There is a chance that the Hecox case gets mooted.
See Also:
The Guardian: US supreme court appears poised to uphold laws banning trans athletes
LGBTQ Nation: Supreme Court hearing on trans sports bans focuses on “biological advantages”
NPR: Supreme Court appears likely to uphold state bans on transgender athletes
HuffPost: Conservative Supreme Court Justices Seem Ready To Let Trans Athlete Bans Stand
The Advocate: Supreme Court seems likely to rule against transgender athletes in school sports programs
