Sadie Schreiner, who identifies as a transgender woman, puts a transgender flag in her hair before heading to the awards stand after finishing 3rd in the finals of the 200m race at the 2024 NCAA DIII outdoor track and field championships at Doug Shaw Memorial Stadium on May 25, 2024, in Myrtle Beach, S.C. (Jahi Chikwendiu/The Washington Post via Getty Images)
In Little v. Hecox, Lindsay Hecox, a biological man who sought to compete on the women’s track and cross-country teams at Boise State University, contended that Idaho’s law, the Fairness in Women’s Sports Act, violated the equal protection clause by categorically excluding transgender women.
West Virginia v. B.P.J. centers on a 15-year-old transgender athlete who identifies as a girl, and who argued the state’s ban violated both Title IX’s ban on sex discrimination in federally funded education programs and the Constitution.
Lawyers for the states defending the bans maintain that separating sports based on biological sex preserves fairness and safety for female athletes and is consistent with Title IX’s definition of sex.
Track and field athlete Selina Soule speaks during an event celebrating the House of Representatives passing the Protection Of Women And Girls In Sports Act outside the U.S. Capitol on April 20, 2023, in Washington, D.C. (Chip Somodevilla/Getty Images)
Observers say a ruling in favor of the challengers could limit state power to adopt similar bans and broaden interpretations of federal nondiscrimination protections, while a decision for the states could uphold the bans and influence other transgender policy disputes, such as bathroom policies and sex designation on documents, such as passports and driver's licenses.
"Ideally, in my mind, what would happen is that all 50 states in the federal government pass a similar law to the Save Women’s Sports Act and women’s playing fields will be exclusive to biological women," McCuskey said.
The transgender athletes in both cases are represented by the ACLU, which argues that the challenged laws unlawfully discriminate against people who identify as women by excluding them from women’s and girls’ sports.
"Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth," ACLU attorneys said in a statement.
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Transgender rights advocates say the red-leaning states and the Trump administration have singled out transgender students and spent exorbitant resources to target what they say are a negligible number of transgender athletes. McCuskey said that argument did not account for women and girls.
"You make the argument that B.P.J. is being discriminated against, but that belies the argument that all 300 of the other girls that B.P.J. beat in an athletic competition aren’t victims," he said.
The Supreme Court is expected to decide the case by early summer.
Ashley Oliver is a reporter for Fox News Digital and FOX Business, covering the Justice Department and legal affairs. Email story tips to ashley.oliver@fox.com.
https://www.foxnews.com/politics/supreme-court-weighs-states-power-set-sex-based-rules-school-sports