Idaho and West Virginia ask Supreme Court to review anti-transgender sports laws

Idaho and West Virginia have asked the U.S. Supreme Court to review rulings that blocked them from enforcing their laws barring transgender athletes from competing under their gender identity in school sports.

If the high court takes the case, which isn't a given, it would be its first opportunity to weigh in on anti-trans sports laws. Federal appeals courts have upheld lower courts’ rulings that blocked the laws’ enforcement while suits against them proceeded.

Idaho in 2020 became the first state to enact such a law; 25 states now have laws or regulations restricting trans athletes’ participation in public school sports, with some of the laws including private schools and/or state colleges and universities as well. Some of them affect trans boys and men as well as trans girls and women, but the latter are the laws’ primary target.

Supporters of the laws have claimed they’re meant to protect cisgender female athletes, although most of those supporters are not known as champions of women’s rights otherwise. Idaho Attorney General Raúl Labrador struck this tone in announcing his petition to the Supreme Court.

“Idaho is committed to ensuring that women and girls get a fair shot on and off the field,” Labrador, a Republican, said in a press release. “While we’ve been protecting fair and equal athletic competition and opportunities, activists have been pushing a radical social agenda that sidelines women and girls in their own sports. Athletic associations around the world have recognized the obvious truth that men and women are biologically different. Allowing biological men to compete in women’s sports creates a dangerous, unfair environment for women to showcase their incredible talent and access critical scholarships. We are asking the U.S. Supreme Court to uphold Idaho’s law and ensure that women and girls get the athletic opportunities they deserve.”

West Virginia Attorney General Patrick Morrisey, also a Republican, told reporters at a Thursday press conference that his office and Labrador’s have been working together on the appeal. “We think the combination of these cases provides a tremendous vehicle for the U.S. Supreme Court to act,” he said, according to the Associated Press. The high court, however, last year rejected an emergency petition from West Virginia to lift the injunction against its law. The state passed the measure in 2021.

In Idaho, Lindsay Hecox, a trans woman track athlete at Boise State University, filed a suit challenging the law shortly after Republican Gov. Brad Little signed it, along with Kayden Hulquist, a then-senior at Boise High School who is cisgender and was concerned about being subjected to the law’s invasive “sex verification” testing. They are represented by the American Civil Liberties Union and its Idaho affiliate, Legal Voice, and Cooley LLP.

Idaho Chief U.S. District Court Judge David C. Nye issued an injunction blocking the ban in August 2020. He noted that it appears to be on shaky constitutional ground. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed his action in 2023.

In West Virginia, trans girl Becky Pepper-Jackson, then 11, filed suit challenging the law in 2021, represented by the ACLU, Lambda Legal, and a private law firm. U.S. District Judge Joseph R. Goodwin that year issued a preliminary injunction temporarily blocking enforcement of the law and said she could try out for girls’ sports, noting that the suit “seeks relief only insofar as this law applies to her.” Goodwin also wrote that Pepper-Jackson, who is on puberty-blocking drugs, “has shown that she will not have any inherent physical advantage over the girls she would compete against on the girls’ cross country and track teams. Further, permitting B.P.J. to participate on the girls’ teams would not take away athletic opportunities from other girls.”

However, in a 2023 decision, Goodwin lifted his injunction against the law. He said West Virginia had a constitutional interest in protecting athletic opportunities for cis girls and women. Trans girls other than Pepper-Jackson may not be on puberty blockers and would therefore have an advantage over cis girls, he ruled.

But in April of this year, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that the state cannot enforce the law against Pepper-Jackson. She is so far the only athlete known to be affected by the law, but her lawyers have encouraged anyone else affected to come forward.