S. Ct. Will Decide: Can States Define Sports Team Eligibility by "Biological Sex Determined at Birth"?

That’s the question presented in two companion cases that the Court agreed to hear, Little v. Hecox and West Virginia v. B.P.J. Note an important difference between this case and Skrmetti, which upheld state limits on certain kinds of youth gender medicine: In Skrmetti, the majority held that the state laws didn’t discriminate based on sex, but here it’s clear that the underlying law does discriminate based on sex, because it provides for separate women’s sports teams. The question is whether the state may choose to define sex based on the particular biological criteria that it has selected.

An excerpt from the Ninth Circuit opinion in Little v. Hecox, which the Court will review:

Because the Act subjects only students who wish to participate in female athletic competitions to an intrusive sex verification process and categorically bans transgender girls and women at all levels from competing on “female[ ], women, or girls” teams, and because the State of Idaho failed to adduce any evidence demonstrating that the Act is substantially related to its asserted interests in sex equality and opportunity for women athletes, we affirm the district court’s grant of preliminary injunctive relief to Lindsay Hecox….

We recognize that, after decades of women being denied opportunities to meaningfully participate in athletics in this country, many cisgender women athletes reasonably fear being shut out of competition because of transgender athletes who “retain an insurmountable athletic advantage over cisgender women.” We also recognize that athletic participation confers on students not just an opportunity to win championships and scholarships, but also the benefits of shared community, teamwork, leadership, and discipline. Excluding transgender youth from sports necessarily means that some transgender youth will be denied those educational benefits.

However, we need not and do not decide the larger question of whether any restriction on transgender participation in sports violates equal protection. Heightened scrutiny analysis is an extraordinarily fact-bound test, and today we simply decide the narrow question of whether the district court, on the record before it, abused its discretion in finding that Lindsay was likely to succeed on the merits of her equal protection claim. Because it did not, we affirm the district court’s order granting preliminary injunctive relief as applied to Lindsay, vacate the injunction as applied to non-parties, and remand to the district court to address the scope and clarity of the injunction.

Likewise, here’s the introduction to the Fourth Circuit opinion in West Virginia v. B.P.J.:

A West Virginia law originally introduced as the “Save Women’s Sports Act” provides that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex,” while defining “male” as “an individual whose biological sex determined at birth is male.” Because West Virginia law and practice have long provided for sex-differentiated sports teams, the Act’s sole purpose—and its sole effect—is to prevent transgender girls from playing on girls teams. The question before us is whether the Act may lawfully be applied to prevent a 13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade from participating in her school’s cross country and track teams. We hold it cannot.

On the other side, here’s an excerpt from the Question Presented from Idaho’s petition in Little v. Hecox:

Women and girls have overcome decades of discrimination to achieve a more equal  playing field in many arenas of American life—including sports. Yet in some competitions, female athletes have become bystanders in their own sports as male athletes who identify as female have taken the place of their female competitors—on the field and on the winners’ podium.

The Idaho Legislature addressed that injustice by enacting the Fairness in Women’s Sports Act, which ensures that women and girls do not have to compete against men and boys no matter how those men and boys identify. The Act—one of 25 such state laws around the country—is consistent with longstanding government policies preserving women’s and girls’ sports due to the “average real differences” between the sexes….

The question presented is: Whether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the Equal Protection Clause of the Fourteenth Amendment.

And from West Virginia’s petition:

Like everywhere else, West Virginia schools offer separate sports teams for boys and girls. The West Virginia Legislature concluded that biological boys should compete on boys’ and co-ed teams but not girls’ teams. This separation made sense, the Legislature found,
because of the “inherent physical differences between biological males and biological females.” …

The questions presented are:

1. Whether Title IX prevents a state from consistently designating girls’ and boys’ sports teams based on biological sex determined at birth.

2. Whether the Equal Protection Clause prevents a state from offering separate boys’ and girls’ sports teams based on biological sex determined at birth.

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