Unpacking the transgender athletes’ case at the Supreme Court

One of the biggest cases in the Supreme Court’s current term involves the constitutional rights of transgender school students to compete in sports competitions. After more than three hours of arguments earlier this month, the outcome remains uncertain.

On January 13, 2026, the justices heard oral arguments in Little v. Hecox and West Virginia v. B.P.J. Those cases require the justices to consider whether state lawmakers can regulate gender identity in scholastic sports competitions, and in particular, block transgender students born as biological men from competing in women’s and girls’ sports.

Among court watchers, there was a consensus after arguments that most of the Court would likely uphold the current bans in 27 states, but there were several additional questions of long-term importance. For example, would the Court also allow states that permit transgender students to compete in sports related to their gender identity to keep those laws on the books? And would a broader ruling expand or limit the rights of all transgender people?

The Cases and Related Precedents

In Little v. Hecox, the Idaho Legislature enacted the Fairness in Women’s Sports Act, which bases competition on biological assignment at birth. The U.S. Court of Appeals for the Ninth Circuit said the law violated the14th Amendment’s Equal Protection Clause and the rights of transgender women and girls. In the case from West Virginia, a parent sued on behalf of her child, B.P.J., arguing that a state law banning biological boys who identify as girls from competing on girls’ teams was unconstitutional. A federal district court ruled in favor of the state on Equal Protection Clause and Title IX of the Education Amendments of 1972 grounds. A divided Fourth Circuit overturned the district court decision in favor of the student on the Title IX claim and ruled against the state under the Equal Protection Clause.

During arguments, the justices explored the importance of an amended federal law and a landmark Supreme Court decision to the case. Title IX bans discrimination based on sex in educational programs and activities that receive federal financial funds. However, the Education Amendments Act of 1974, known as the Javits Amendment, allows schools receiving funds under Title IX to establish “reasonable provisions considering the nature of particular sports.” Subsequent rules established by Congress held that “no person shall, on the basis of sex,” be excluded from athletic programs receiving federal funds, but schools “may operate or sponsor separate teams for members of each sex” if they provide equal access the school’s entire athletics program.

The Supreme Court precedent is Bostock v. Clayton County (2020). There, the justices considered Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination. In particular, the case required the justices to decide whether the Act’s prohibitions applied to classes based on sexual orientation and gender identify. Writing for a 6-3 majority, Justice Neil Gorsuch said that “in Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. … An employer who fires an individual merely for being gay or transgender defies the law.” Among the justices agreeing with Gorsuch was Chief Justice John Roberts.

Arguments at the Court

At the Supreme Court, the arguments in Little v. Hecox considered the 14th Amendment and whether the test of intermediate scrutiny could be considered to settle the discrimination question. Justice Elena Kagan focused on whether they frame the case as an as-applied challenge, which could change precedents related to scrutiny tests.

The Court’s intermediate scrutiny test requires a law to further an important government interest, and it is less severe than the strict scrutiny test, which places a high burden on the government. The Court’s rational-basis text is the least restrictive, only requiring a statute has a legitimate state interest, and a rational connection between its means and goals.

The discussion also included questions from Justice Brett Kavanaugh about situations where states allow biological males to compete as transgender competitors in women’s sports. He asked Idaho Solicitor General Alan M. Hurst if in “those states who do allow it, are they – is your position that they are violating the Constitution, the Equal Protection Clause rights of biological girls and women by allowing that, or do you say that’s up to each state to decide and that the Constitution gives discretion to the state whether to allow it or not to allow it?” Hurst responded that he did not believe his arguments were relative to other states outside the current case.

In West Virgina v. B.P.J., Chief Justice Roberts questioned if the Bostock precedent was applicable to the transgender sports case. “In terms of Bostock, I understand that to say that discrimination on the basis of transgender status is discrimination on the basis of sex. But the question here is whether or not a sex-based classification is necessarily a transgender classification,” Roberts stated.

Justice Gorsuch raised the question of the Javits Amendment to Joshua A. Block, who was representing the transgender student. “Do you dispute that the HEW (Department of Health, Education and Welfare) regulation that has been on the books for 50-plus years is reasonable?” Block responded that the Javits Amendment as implemented “is absolutely reasonable as applied to cisgender students. I think that as applied to transgender students, instead of providing them equal overall opportunity, it's a complete exclusion from the program.”

Justice Kagan also referred to a question posed by Justice Kavanaugh in the Little v. Hecox arguments about states having different regulations. “So, if we didn't want to prevent a different state from making a different choice from West Virginia, what should we not say or what should we say to prevent that from happening?”, she asked Block. “I wouldn't decide this by assuming that Title IX provides a right to single-sex teams. In the regulations, single-sex teams are optional. They're not mandatory,” he replied.

Possible Outcomes

In the post-argument discussion among court watchers, analysis focused on what the two decisions could mean for the fate of the Bostock precedent. In its prior term, a divided Court decided in United States v. Skrmetti that a Tennessee law prohibiting gender-affirming care for minors satisfied a rational-basis test and did not fall under the Bostock precedent that considered gender identity as a protected class. Also, in Skrmetti, Justice Gorsuch, the author of the Bostock majority opinion, joined the majority opinion but did not write separately.

In the two cases now before the Court, Gorsuch was actively questioning both sides during arguments. Justice Kavanaugh seemed focused on the ability of states to decide on their own to allow or ban transgender athletes from competition. And Justice Kagan wondered how allowing as-applied challenges to equal protection decisions would impact the Court’s precedents on scrutiny.

Justice Sonia Sotomayor discussed the question of mootness during the Little v. Hecox arguments, since Hecox submitted a petition with the Court in September 2025 asking that her case be voluntarily dismissed. Justice Ketanji Brown Jackson also raised the same question to Idaho Solicitor General Hurst. “Finally, let me just ask you about mootness because it's a little odd, I think, that a defendant would not want a case dismissed,” Jackson said. “Ordinarily, the defendant is the one who's claiming mootness because they've been sued.”

The Court’s decisions in the two cases are expected by late June 2026.

Scott Bomboy is the editor in chief of the National Constitution Center.