There are few more contentious issues right now than the participation of transgender children and college students in school sports. Even the U.S. Supreme Court is about to step in to make some decisive moves on these divisive questions.
The Pre-Legislation Landscape
Before 2020, Idaho and West Virginia, like most states, did not have laws in place regulating the ability of transgender youth to participate in school sports.
For years, Idaho followed the national norm of separating school sports teams by sex, with girls and boys competing on designated teams. The Idaho High School Activities Association and the NCAA both allowed transgender girls to participate on girls’ teams after one year of hormone therapy, mirroring policies used by other athletic organizations.
Similarly, West Virginia allowed transgender students to participate in school sports as long as certain criteria were met. This was based on a 2016 policy from the West Virginia Secondary School Activities Commission, which used a case-by-case approach to allow or deny participation of a particular transgender student. A trans student could participate on teams matching their gender identity only if their school determined that “fair competition” would not be impacted by the student’s participation. Once it was allowed, any other member school could appeal that decision to the Commission’s board of directors. The board would then decide whether the student’s participation “would adversely affect competitive equity or safety of teammates or opposing players.” In making this decision, the board was directed to consider factors such as the student’s age, athletic experience, strength, size, and speed, and the nature of the sport.
Rise of Restrictive Laws
In early 2020, Idaho legislators introduced House Bill 500, the “Fairness in Women’s Sports Act,” which categorically barred transgender women and girls from participating in women’s sports at any public school or college in the state. The bill also created a sex verification process, allowing anyone to dispute a female athlete’s sex and requiring the athlete to undergo potentially invasive medical examinations. The bill’s sponsors claimed it was necessary to protect fairness in women’s sports, citing physiological differences between males and females.
The law was passed in March 2020, even as the COVID-19 pandemic was escalating, and Governor Little signed it into law on March 30, 2020.
In 2021, the West Virginia Legislature passed House Bill 3293, known as the “Save Women’s Sports Bill.” This law required all public school sports teams to be designated based on “biological sex.” The same statute defined “biological sex” as “an individual's physical form as a male or female based solely on the individual's reproductive biology and genetics at birth.” Under the law, athletic teams labeled for girls or women were closed to anyone classified as “biologically male,” regardless of gender identity. The stated intent of the law was to ensure equal athletic opportunities and protect the safety of female athletes, but critics argued it specifically targeted and excluded transgender girls.
Idaho Athletes Struggle
Lindsay Hecox, a transgender woman and undergraduate student at Boise State University, found herself at the center of Idaho’s new legal landscape almost immediately after the passage of the Fairness in Women’s Sports Act. Lindsay had long been passionate about running. She had competed on co-ed track and cross-country teams in high school and, after beginning her transition and undergoing hormone therapy, she was eager to continue her athletic journey at the collegiate level. Her goal was to try out for the women’s cross-country and track teams at BSU. The new law prevented this from occurring.
The law categorically barred her from trying out for or participating in women’s sports at any public school or college in Idaho, regardless of compliance with medical guidelines. Hecox argues this affected her right to participate fully in campus life.
Perhaps surprisingly, it wasn’t just transgender students who were affected. Kayden Hulquist was a cisgender high school student in Boise who played varsity soccer and track. She faced a different but related threat under the new law. Under the Act, any athlete on a girls’ team could have her sex “disputed” by anyone: a coach, parent, competitor, or even a member of the public. If that happened, that athlete would be required to undergo a potentially invasive sex verification process, which could include medical examinations or genetic testing.
Kayden did not conform to traditional expectations of femininity: she had an athletic build, rarely wore skirts or dresses, and was often described as “masculine” in her presentation. For her, the prospect of being singled out, questioned, and forced to prove her sex was not only humiliating but also a real risk because of her nonconforming appearance. She feared that the law would open the door to harassment, privacy violations, and the loss of her ability to participate in the sports she loved.
Lindsay and Jane's experiences set the stage for a legal battle that was simultaneously brewing in West Virginia.
West Virginia Child Faces Exclusion
Becky Pepper-Jackson is a transgender girl from West Virginia who has lived as a girl since early childhood. Assigned male at birth, Becky began expressing her female gender identity as young as three years old, and by the end of third grade, she was living openly as a girl both at home and in public. In 2019, she was diagnosed with gender dysphoria, a condition marked by distress arising from the incongruence between her gender identity and her sex assigned at birth. Following medical advice, Becky began puberty-blocking treatment at the earliest signs of puberty, which prevented her from developing the physiological changes typically associated with male puberty. This medical intervention was intended to align her physical development with her gender identity and to mitigate the distress caused by gender dysphoria.
As Becky prepared to enter middle school, she hoped to participate on the girls’ cross country and track teams, having previously enjoyed being part of her elementary school’s all-girls cheerleading squad without incident. However, her plans were upended when West Virginia enacted the Save Women’s Sports Act. When Becky’s mother inquired about her eligibility, school officials told her that Becky would not be allowed to try out for the girls’ teams due to the new law.
“I just want to run, I come from a family of runners,” Becky said after deciding to take legal action. “I know how hurtful a law like this is to all kids like me who just want to play sports with their classmates, and I’m doing this for them. Trans kids deserve better.”
Becky Sues West Virginia
With the help of national LGBTQ+ civil rights nonprofit Lambda Legal, Becky and her mother filed a lawsuit challenging the West Virginia law under the Equal Protection Clause and Title IX. They argued that the law targeted transgender girls for exclusion, denying Becky the chance to participate in school sports alongside her peers and causing her emotional harm and stigma.
After a federal district court ruled for the state of West Virginia, the Fourth Circuit Court of Appeals reversed, ruling that the law cannot be lawfully applied to Becky. It held that the law’s definition of “sex” is a facial classification based on gender identity and triggers intermediate scrutiny under the Equal Protection Clause. On the Title IX claim, the court found that the law, as applied to Becky, violates Title IX because it discriminates based on sex and gender identity, treats Becky worse than similarly situated cisgender girls, and causes her harm.
The court emphasized that its decision was limited to Becky’s circumstances and did not require all transgender girls to be allowed on girls’ teams regardless of their medical history or puberty status.
Idaho Plaintiffs Sue
In Idaho, the ACLU swooped in. In April 2020, before Idaho’s law took effect and before tryouts for fall sports began, the organization filed a lawsuit challenging it in federal court. The lawsuit was filed as a class action on behalf of all women and girl athletes in Idaho who could be affected by the law, but only Lindsay Hecox and Kayden Hulquist were named plaintiffs.
They argued that Idaho’s Fairness in Women’s Sports Act violates the Equal Protection Clause of the Fourteenth Amendment by discriminating both on the basis of transgender status and sex. Their legal theory is that the Act discriminates on its face in two separate ways: one through its categorical exclusion of transgender women and girls from participating in women’s sports, and another through its requirement that only female athletes be subject to invasive sex-verification procedures. They argue that such discrimination triggers heightened constitutional scrutiny.
The Idaho plaintiffs emphasized that the Act’s definition of “biological sex” is intentionally crafted to exclude transgender women, and that the law’s legislative history and practical effect reveal a purpose to target and stigmatize transgender individuals. They further contend that the Act is not substantially related to any important governmental interest, as there is no evidence that transgender athletes have displaced cisgender women in Idaho sports or that the existing NCAA and state policies were inadequate. By treating girls differently and less favorably than boys, they argue the law fails both intermediate and rational basis scrutiny and cannot be justified under the Constitution.
Like the Fourth Circuit in the West Virginia Case, the Ninth Circuit sided with the plaintiffs and granted them an injunction blocking the law.
SCOTUS Soon to Settle Things
Unsurprisingly, both Idaho and West Virginia appealed the circuit courts’ rulings to the U.S. Supreme Court. Last week, the Court agreed to hear the cases. As the cases are tightly linked, it’s most likely that it will decide to consolidate the two states’ cases into a single opinion.
We still don’t know which issues the Court will decide to fully answer, but it’s possible we’ll hear whether states can keep transgender girls out of girls’ sports teams. Other considerations include: Who gets to define “sex” under the law? Is biology, gender identity, or something else most relevant? And, are transgender people entitled to special protection under the Equal Protection Clause?
Stay tuned.
Related Resources:
- The Law On Healthcare for Transgender Youth Across America (FindLaw's Law and Daily Life)
- Important Laws and Policies for Transgender Athletes (FindLaw's Learn About the Law)
