Supreme Court Justice Ketanji Brown Jackson pressed attorneys for Idaho and West Virginia on Tuesday over whether their state laws barring transgender athletes from competing in girls’ sports improperly discriminate against transgender individuals, signaling potential fault lines as the court weighs cases with nationwide implications, as reported [1] by Fox News.
The high court heard oral arguments in two cases challenging Idaho’s Fairness in Women’s Sports Act and West Virginia’s Save Women’s Sports Act.
Both laws restrict participation in female sports teams to biological girls and women, excluding transgender athletes who identify as female. A ruling is expected by summer and could affect policies in roughly two dozen states with similar laws.
During questioning, Jackson challenged Idaho Solicitor General Alan Hurst on whether the state’s law explicitly classifies athletes based on transgender status.
“I guess I’m struggling to understand how you can say that this law doesn’t classify on the basis of transgender status,” Jackson said.
“The law expressly aims to ensure that transgender women can’t play on women’s sports teams. So why is that not a classification on the basis of transgender status?”
Hurst responded that the Idaho statute is based on biological sex rather than gender identity.
“The legislature did not want to exclude transgender people from sports,” Hurst said. “It wanted to keep women’s sports women-only and exclude males from women’s sports.”
Jackson continued to challenge that explanation, asking directly, “But it treats transgender women different than ciswomen, doesn’t it?”
In a separate argument involving West Virginia’s law, Jackson raised similar concerns with West Virginia Solicitor General Michael Williams.
The West Virginia case centers on a 15-year-old who identifies as a transgender girl and is represented by the American Civil Liberties Union.
The lawsuit argues that the state law violates Title IX and the Constitution’s equal protection clause.
Jackson framed the issue as layered discrimination.
“It’s like a second-order discrimination, right?” Jackson asked Williams. “The first order is separating male from female. … The second order is separating transgender women from cisgender women, right?”
Williams countered that the court’s focus should remain on whether states are permitted to separate boys and girls in school athletics, not on distinctions between biological girls and transgender athletes who identify as girls.
Jackson, a Biden appointee, continued to press the issue, suggesting that the laws do more than draw a sex-based line.
“You have the overarching classification — everybody has to play on the team that is the same as their sex at birth — but then you have a gender-identity definition that is operating within that, meaning a distinction, meaning that for cisgender girls, they can play consistent with their gender identity. For transgender girls, they can’t,” Jackson said.
She added that the court should examine “the notion that this is really just about the definition of who — that we accept that you can separate boys and girls, and we are now looking at the definition of a girl, and we’re saying only people who were girl-assigned-at-birth qualify.”
Williams argued that once the court accepts the principle that states may separate sports teams by sex, disputes over how “girl” is defined should be reviewed under a less demanding legal standard.
“But I don’t think the Court needs to go as far as that,” Williams said.
Jackson’s focus on definitions drew renewed attention to her 2022 confirmation hearing, when Sen. Marsha Blackburn, R-Tenn., asked her to define “woman.”
“I can’t, not in this context. I’m not a biologist,” Jackson said at the time.
That exchange has since been frequently cited by conservatives during debates over transgender policies in sports and education.