Kavanaugh and Roberts are already looking ahead to the next major transgender controversy

By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — During a marathon Supreme Court session Tuesday over whether states may ban transgender women from participating in women and girls’ sports, some justices were already focused on what may lie around the corner in the controversial area of trans rights.

The majority appeared poised to uphold bans in Idaho, West Virginia and about 25 other mostly Republican-controlled states. One next question, not far from their minds, was whether California and about 20 other mainly Democratic states may move in the opposite direction and specifically permit trans women to compete on female school sports teams.

Justice Brett Kavanaugh raised concerns about trans women putting girls and women at a disadvantage.

“It’s kind of a zero-sum game for a lot of teams,” Kavanaugh said. “And someone who tries out and makes it, who is a transgender girl, will bump from the starting lineup, from playing time, from the team, from the all-league – and those things matter to people big time – will bump someone else.”

Kavanaugh, who has coached girls’ sports on the side, had pressed the issue of safety and competitive fairness in an unrelated trans case last year.

Other conservative justices seemed to be anticipating how their interpretation of Title IX, which prohibits sex discrimination in school programs that receive federal funds, could affect programs beyond the pending sports case in a broader educational context.

Liberal justices separately pressed for some avenue that would allow transgender women to persist in lawsuits based on their specific circumstances, for example, because their suppressed testosterone levels may ensure no competitive advantage.

Overall, the three-and-a-half hours of arguments in the packed courtroom showed the justices grappling with an array of possibilities on a societal dilemma that personally affects only about 1% of the United States population but has become a flashpoint in politics and American culture wars.

President Donald Trump ran against trans rights in the 2024 election campaign that returned him to the White House, and one of his immediate executive orders said: “It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable … .”

Trump’s administration has since banned trans troops in the military, required US passport holders to use their sex at birth rather than gender identity and ordered an end to federal funding for certain medical care for trans youths. It has also tried to keep trans women from competing in women’s school sports – a point of contention that repeatedly surfaced in Tuesday’s argument.

But while deputy US Solicitor General Hashim Mooppan acknowledged the administration’s efforts to stop states from letting trans women and girls compete, he urged the justices to rule narrowly on the disputed Idaho and West Virginia state bans and leave that litigation for another day.

“As we said in our brief, we would urge the court to just reserve judgment,” on whether such blue state measures are lawful, he said.

Chief Justice John Roberts, who has played a key role in past trans controversies, suggested by his questions that he wanted to limit the reverberations from the current case, particularly as he tried to distinguish it from a 2020 milestone decision that favored trans rights.

In Bostock v. Clayton County, the justices ruled that the Title VII prohibition on sex discrimination in the workplace covered bias against gay and trans workers. As the majority opinion from Justice Neil Gorsuch, joined by Roberts, said: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”

The decision added: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Addressing West Virginia state Solicitor General Michael Williams, Roberts said, “In terms of Bostock, I understand that to say that discrimination on the basis of transgender status is discrimination on the basis of sex. But the question here is whether or not a sex-based classification is necessarily a transgender classification.”

Williams agreed and said, “I think the court can stop and say that a sex definition and a reference to biological sex is not the same as a transgender classification.”

West Virginia officials contend that Title IX allows states to create sex distinctions in sports based on biological differences, such as size and strength.

Lawyers for the two trans women confronted a bench that has increasingly ruled against the interests of transgender individuals, in a case last year involving state prohibitions on medical care for trans youths and in a series of preliminary orders on Trump anti-trans initiatives.

The challenges to the bans came from Lindsay Hecox, an Idaho college student who wanted to compete on the Boise State women’s track and field team, and Becky Pepper-Jackson in West Virginia who challenged that state’s ban as a middle schooler on the girls’ track team and is now in high school hoping to compete in women’s shot put.

Their lawyers, Kathleen Hartnett for Hecox, and Joshua Block for Pepper-Jackson, urged the justices to avoid a definite decision on the limits of Title IX’s prohibition on sex discrimination or the reach of the Fourteenth Amendment’s equality guarantee in trans cases. The advocates said further lower-court proceedings could show that the individual trans women lack any competitive advantage that would jeopardize the goals of Title VII, for example, because of hormone treatments.

Kavanaugh was particularly skeptical as he returned to what he called “the big picture.”

“Obviously, one of the great successes in America over the last 50 years has been the growth of women and girls’ sports,” he said, addressing Hartnett, “And there – you know, some states and the federal government and the NCAA and the Olympic Committee, so these are a variety of groups who study this issue, think that allowing transgender women and girls to participate will undermine or reverse that amazing success.”

“Just to be clear,” Hartnett responded, “Title IX is a huge triumph, and I’m a veteran of women sports myself. I’m glad it exists. It’s made a huge difference in our society. That’s not what we’re talking about here. … I think the question is: is there an unfair biological advantage?”

Hartnett continued, “That’s why we are here not proposing a rule of absolute inclusion but saying that in the case of people like our client who have mitigated, their exclusion doesn’t match the statutory interest,” of Title IX.

Gorsuch, whose queries did not clearly reveal how he would rule, asked how a trans athlete’s potential advantage or disadvantage would be evaluated, “if there’s scientific uncertainty about whether puberty blockers and testosterone suppressants completely, or mostly, or some percentage of the time, eliminate all competitive advantage?”

He questioned whether evidence would be considered on an individual basis or for a group.

“It seems to me from my glance at the record,” Gorsuch added, “and quite a record it is, that there is a healthy scientific dispute about the efficacy of some of these treatments, and – and that’s understandable.”

The Trump administration’s Mooppan and the state lawyers urged the justices simply to declare that Title IX’s protection against discrimination based on “sex” refers to biological sex.

“As a result,” Mooppan added, “whether they are right that taking testosterone suppression eliminates any physical advantage doesn’t matter because the regs define separation based on sex, based on biology, not based on circulating testosterone levels.”

This Supreme Court majority may be ready to accept that proposition, over the clear dissatisfaction of the three liberals, who have increasingly lost on social and cultural issues to the six-member conservative supermajority.

That reality was highlighted in one exchange between senior liberal Justice Sonia Sotomayor and Mooppan.

As Sotomayor began to reproach him for a line of arguments that she contended flew in the face of earlier court precedent, she said, “We’ve been doing an awful lot of that lately.”

Then, she added to Mooppan, part of a Trump legal team that has benefitted from the pattern of reversals, “You’re smiling because it’s true.”

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