The transgender sports questions the Supreme Court likely won’t resolve

Holly Stewart describes herself as a baby boomer and a “second-wave feminist lesbian.” But last Tuesday morning, outside the Supreme Court, she was not standing with LGBTQ rights groups as they called on justices to remove protections for women’s sports.

Instead, Stewart stood with female athletes in a counterprotest, holding a bright pink sign that read, “Feminists for women’s sports.”

Stewart, 72, said growing up she “really, really, really wanted to be a boy.” But now she’s grateful transgender interventions weren’t so readily available.

“Thank goodness, my parents never would have permitted it. It would have taken years to get past the idea that they were standing in the way of my happiness,” she said. “That wish literally disappeared without my even realizing it.”

Stewart is part of an unlikely alliance bringing together lesbians, feminists, conservative Christians, liberal Democrats, and far-right Republicans. While about 200 supporters rallied on the left of the court in support of transgender athletes participating in women’s sports, Stewart and another 200 or so stood to the right, holding signs that said, “Stop transing gay kids” and “67% of Dem voters don’t want males in women’s sports.”

During Supreme Court arguments last week over transgender sports policies, justices seemed likely to side with Stewart and the more than two dozen states that have passed laws protecting girls’ and women’s sports from male participation. But even with growing popular support for such protections, experts say that a Supreme Court decision isn’t going to end debates over the issue, as a patchwork of state laws will raise more legal questions. Already, a case in Minnesota asks whether states that haven’t instituted those protections must do so.

Last week’s Supreme Court oral arguments in Little v. Hecox and West Virginia v. B.P.J. involved two male students, one a college student in Idaho, the other a middle schooler in West Virginia. Lindsay Hecox and Becky Pepper-Jackson both wanted to compete on their respective schools’ women’s and girls’ track and field teams, but state laws designated those teams for females only.

The two athletes challenged their state laws in separate courts, and both appeals courts blocked the laws—but for different reasons. The justices will now decide whether the state laws violated either the 14th Amendment or Title IX, or both.

A ruling isn’t expected for months, but lawyers say a decision there still won’t close the book on the issue of transgender athletes in women’s sports.

Even if the court decides to favor state laws barring male athletes from competing in women’s sports, there could still be lower court challenges to these laws, notes Suzanne Beecher, legal counsel at Alliance Defending Freedom. And some litigation could target states that do allow males to compete on women’s teams.

She said that’s already happening.

On Thursday, just two days after the Supreme Court’s oral arguments, the 8th U.S. Circuit Court of Appeals heard oral arguments in a separate case that a group of female athletes brought. They challenged the sports participation policy in the Minnesota State High School League, which allows students to participate on a sports team that is “consistent with their gender identity or expression.”

“If the Supreme Court upholds the rights of states to protect a female category based on sex … that would leave open the question of whether states have to protect the female category,” Beecher said.

Right now, only half of the country has such protections. Currently, 27 states restrict women’s sports only to those born female, according to the pro-LGBTQ Movement Advancement Project. Twenty-one states and the District of Columbia allow girls’ teams to include males who identify as females.

Because states are divided, that will introduce other thorny questions, like what girls’ teams should do if they cross state lines and compete in a state that has different protections. Or whether states can make laws preventing transgender people from entering women’s locker rooms and restrooms.

That may be left up to states, localities, and athletic associations to resolve.

Males who identify as females are not allowed to compete in NCAA women’s sports, according to the association’s current participation guidelines. Participation rules for younger student athletes vary from state to state, and often involve input from high school athletic associations and local school boards.

Also left up for debate is whether schools should allow females who identify as males to participate in boys’ or men’s sports. Irene Lawrence, public actions coordinator from the advocacy group Women’s Declaration International USA says the fact that men have not made a similar protest furthers her group’s argument that women’s sports need protections.

“There’s no corresponding outpouring of women who have attempted to disguise their sex, playing on the male team,” Lawrence said. “We only see this going in one direction.”