The Supreme Court heard arguments this week concerning state laws restricting transgender athletes’ participation in girls’ sports, with Justice Ketanji Brown Jackson at the center of a probing examination of the legal justifications presented.
During oral arguments, Justice Jackson directly questioned the solicitors general of Idaho and West Virginia, challenging their assertions that the laws did not discriminate based on transgender status. She pressed for clarity on how the states differentiated between transgender girls and cisgender girls, highlighting what appeared to be a clear distinction in treatment.
Jackson specifically asked Idaho’s solicitor general why a law explicitly preventing transgender women from competing on women’s teams wasn’t, in itself, a classification based on transgender status. The response centered on the intent to preserve women’s sports as exclusively for those assigned female at birth, a claim Jackson immediately challenged.
The core of Jackson’s inquiry focused on the idea of “second-order discrimination.” She posited that the laws first separate athletes by assigned sex, then further separate transgender women from cisgender women, creating a distinct disadvantage for transgender individuals.
A case before the court involves a 15-year-old transgender girl in West Virginia, represented by the ACLU, who argues the state law violates both Title IX and the Equal Protection Clause of the Constitution. The state’s solicitor general argued the court should focus solely on the initial separation of boys and girls, not the subsequent distinction within those categories.
Justice Jackson countered this argument, emphasizing that the law doesn’t simply divide by sex assigned at birth, but also restricts transgender girls from participating consistent with their gender identity, while allowing cisgender girls to do so. This, she argued, creates a fundamental inequality.
The debate ultimately hinged on the definition of “girl” itself. Jackson questioned whether the court was being asked to accept the premise of separating boys and girls, and then simply defining who qualifies as a “girl” based solely on birth assignment.
This line of questioning resonated with a moment from her 2022 confirmation hearings, when Senator Marsha Blackburn asked Jackson to define “woman,” to which Jackson famously responded, “I can’t, not in this context. I’m not a biologist.” The question, often posed to transgender rights advocates, is seen by many as intentionally provocative.
The Court’s decision, expected by summer, carries significant weight. A ruling in favor of the states could empower roughly two dozen others to enact similar restrictions, impacting transgender athletes across the country and potentially influencing broader transgender policies nationwide.
The justices are grappling with complex legal and social questions, and the outcome will likely shape the landscape of transgender rights and athletic participation for years to come.
