In 2021, when I first started writing about the gender rights backlash, there was only a smattering of state statutes targeting transgender athletes. Idaho had been the very first, followed by West Virginia, but the similarity they all had with one another, the phrases, the same mischaracterizations of science, suggested they were a part of a concerted effort that was growing. The original trial court’s decision in Hecox v. Little, addressing the ban in Idaho, quite effectively explained why barring transgender girls and women from women’s sports violated both Title IX and the Equal Protection clause, relying on the strength of the Supreme Court’s recent Bostock decision in the employment context as a potent analogy.
I wondered at the time whether I should even bother writing about these statutes, so likely it seemed then that they would all be similarly enjoined by the federal courts. I was arguing that the language of the statutes had effects even if the laws were certain to be overturned. But as I worked on that article, it grew and grew as the legislative movement gained momentum. Indeed, so strong was the effect on public opinion of these statutes and other speech acts I was studying, that by the time I finished the article, I was forced to revise sentences that had originally said “Despite their near certain defeat in federal court, these statutes still have negative effects.” That’s because some courts, following public opinion, had begun to uphold these bans, along with bans on gender affirming care, and use of bathrooms aligned with one’s gender, even though all these issues had seemed to be settled years earlier.
Now we have come full circle, or perhaps full spiral, with Hecox v. Little finally making its way to the Supreme Court (to be argued next term as Little v. Hecox, along with West Virginia v. BPJ) amid a legal landscape I would never have predicted when I first read that persuasive district court opinion. If I, as an ally just writing about these issues, feel disoriented by the shifting tides, I can only imagine how difficult it is for transgender, nonbinary, and intersex kids and their families. Middle schooler Lindsay Hecox, who just wanted to play club sports in peace, is getting ready to graduate from high school, but her case, which seemed such a slam dunk five years ago, may now prove to be the occasion on which the Court forecloses similar opportunities for other determined and talented young people.
I think it will be much harder (than in the gender-affirming care context) to avoid recognizing this as sex discrimination because of the explicit classification on the basis of "biological sex". However, I expect this Supreme Court majority will find that the classification meets the heightened scrutiny because of supposed impact on women's sports opportunities. That's unfortunate, because these statutes are so broad based, affecting low level sports like club sports and lower grades. The Biden administration had proposed guidelines that would have allowed schools to engage in some restrictions where scholarships and other important aspects of winning were on the line (like varsity sports), as long as other opportunities were provided to transgender students to participate. But that's not what these states are doing...
Dear Prof. Keller. Do you think the Court will apply intermediate scrutiny in this new case? Thank you.