The U.S. Supreme Court heard arguments on Tuesday in a case challenging West Virginia and Idaho laws that ban transgender athletes from participating in women’s and girls’ sports.
The case, Little v. Hecox, originated in 2020, when Idaho was the first U.S. state to enact a law prohibiting “students of the male sex” from participating in athletic teams designated for women or girls. Lindsay Hecox, a transgender student at Boise State University who wanted to join the college’s women’s cross-country team, sued Bradley Little in his capacity as Idaho Governor.
The U.S. District Court for Idaho blocked the law in 2020, and Ninth Circuit Appeals Court upheld that ruling in 2023, after which the case went to the Supreme Court.
In the lead-up to oral arguments on Tuesday, lawmakers staked their positions on both sides of the aisle. In November, 121 House Representatives and nine Senators filed an amicus brief — a legal submission in a case by people who are not direct parties in that case — in support of Hecox.
Among those 130 lawmakers was Hawai‘i Sen. Mazie Hirono, the lead Senate representative on the brief, and Rep. Jill Tokuda.
That amicus brief argued that a categorical ban on athletic participation based on gender identity will cause greater harm to women and girls by subjecting their gender expression to intense scrutiny. It cited several incidents where cisgender girls were accused of being trans based on their physical appearance and were subject to harassment and bullying.
The brief also opined that such a ban cannot meet basic legal justifications. For the government to impose gender-based segregation legally requires “an exceedingly persuasive justification,” but a categorical ban would “promote unfairness by precluding students from obtaining the benefits of youth sports on the basis of sex.”
Meanwhile, on the other side of the aisle, 207 lawmakers — all women, none from Hawai‘i — submitted their own amicus brief last week in support of the Idaho law.
The brief in support of the law argued that equal treatment of the sexes requires the preservation of spaces reserved for biological women alone and that compromising those spaces to allow transgender athletes to participate will place women and girls at a competitive disadvantage, based on physiological differences between the sexes.
"Without a gender–based classification in competitive contact sports, there would be a substantial risk that boys would dominate the girls’ programs and deny them an equal opportunity to compete in interscholastic events," the brief read.
Oral arguments on Tuesday discussed all of these arguments and more. While much of the discussion took the form of technical debates about interpretations of prior case law, a recurring point throughout the three-hour-long hearing was whether Idaho’s law constitutes discrimination against transgender people.
Little’s legal team has consistently argued that the law merely imposes sex-based classifications, and any impacts on transgender participation are simply the downstream effects of that classification. Hecox’s team has argued that is a distinction without a difference, and that the practical upshot of the law is de facto anti-trans discrimination.
The court also discussed whether the case should even be heard at all: Hecox, still a BSU student, had moved in September to have the case dismissed as moot, writing that she no longer intends to participate in women’s sports at BSU, and that she fears escalating harassment if she continues the lawsuit.
The Supreme Court did not reach a verdict on Tuesday, although one is expected by this summer.
ASD reached out to Hirono for further comment.
