Justice Ketanji Brown Jackson raised concerns during Supreme Court oral arguments on Tuesday about how a pair of state laws blocking transgender athletes from competing in girls’ sports could discriminate against transgender people.
Jackson asked the solicitors general of Idaho and West Virginia, who appeared in court to defend the laws, similar questions about whether their states were improperly treating transgender athletes who identify as girls differently than biological girls.
“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 to Idaho Solicitor General Alan Hurst. “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 replied that Idaho’s Fairness in Women’s Sports Act hinged on a student athlete’s sex, not transgender status.
“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 press Hurst, asking: “But it treats transgender women different than ciswomen, doesn’t it?”
