TRANSGENDER

Little v. Hecox

Issues

Do laws that limit participation in women’s and girls’ sports to biological females violate the equal protection clause of the 14th Amendment?

This case asks the Supreme Court to decide whether laws that limit participation in women’s and girls’ sports to biological females violate the equal protection clause of the 14th Amendment. Petitioner Bradley Little, the Governor of Idaho, argues that the prohibition on males participating in women’s sports does not violate equal protection because it is substantially related to the important state interest of promoting women’s equality in athletics. Respondent Lindsay Hecox counters that the prohibition violates equal protection by discriminating against a quasi-suspect classification of transgender people. Moreover, Hecox argues the prohibition is not substantially related to the government’s interest in fair athletic competitions. The outcome of this case will have significant ramifications for participation in women’s sports and the ongoing interpretation of gender discrimination law.

Questions as Framed for the Court by the Parties

Whether laws that seek to protect women's and girls' sports by limiting participation to women and girls based on sex violate the equal protection clause of the 14th Amendment.

In March 2020, Idaho categorically banned transgender women’s and girls’ participation in women’s student athletics with the enactment of the Fairness in Women’s Sports Act (“FWSA”). Hecox v.

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R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission

Issues

Does Title VII of the Civil Rights Act of 1964 prohibit discrimination against transgender individuals, either as a form of sex discrimination or as impermissible “sex stereotyping” under Price Waterhouse v. Hopkins?

This case asks the Supreme Court to decide whether the prohibition of sex-based discrimination under Title VII of the Civil Rights Act of 1964 also extends to discrimination based on gender identity. Harris Funeral Homes (“Harris Homes”) terminated Aimee Stephens’s employment shortly after Stephens informed Harris Homes that she was transgender. Harris Homes and the Equal Opportunity Employment Commission (“EEOC”) take the position that Stephens’s termination was not discriminatory because her termination was premised upon her refusal to follow Harris Homes’s sex-specific and strictly applied dress code. Stephens counters that her dismissal was impermissible under Title VII because the decision to fire her was based on her sex and general principles of “sex stereotyping.” The Supreme Court’s decision will have implications for the wellbeing of transgender employees and for the religious interests of employers.

Questions as Framed for the Court by the Parties

Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

From October 2007 to August 2013, Aimee Stephens was employed as a funeral director for R.G. & G.R. Harris Funeral Homes (“Harris Homes”), a for-profit corporation operating funeral homes in Michigan. Equal Employment Opportunity Commission v. R.G. & G.R.

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Acknowledgments

The authors would like to thank Professor Michael C. Dorf for his guidance and insights into this case.

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United States v. Skrmetti

Issues

Does banning gender-affirming care for minors violate the equal protection clause of the 14th Amendment?

This case asks the Supreme Court to determine the extent to which the 14th Amendment’s Equal Protection Clause applies to gender-affirming healthcare for transgender minors. Tennessee’s Senate Bill 1 prohibits medical treatments intended to alleviate gender dysphoria or initiate gender transition for minors. The United States argues that the Bill violates the Equal Protection Clause by withholding medical care on the basis of a patient’s sex, or alternatively, that the Bill discriminates against a quasi-suspect classification: transgender status. Skrmetti contends that the Bill applies equally to Tennessee youth regardless of gender, that it is not motivated by discriminatory intent, and that transgender status does not meet the quasi-suspect class characteristics of being discrete, insular, immutable, and politically powerless. The case will have powerful implications for future state policies regarding healthcare and transgender care, especially for minors, in the continuing social and political conflict over LGBTQ+ rights.

Questions as Framed for the Court by the Parties

Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause of the 14th Amendment.

On March 2, 2023, Tennessee passed Senate Bill 1, which went into effect on July 1, 2023. L.W. v. Skrmetti at 469. The law prohibited minors in Tennessee from receiving gender-affirming care for gender dysphoria or enabling minors to live with a gender identity inconsistent with their sex assigned at birth. Id. at 470.

Acknowledgments

The authors would like to thank Professors Deborah Dinner and Sheri Lynn Johnson for their insights into this case.

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West Virginia v. B.P.J.

Issues

May a state prevent transgender girls who have not undergone male puberty from participating in girls’ sports?

This case asks the Court to decide whether states may prevent transgender girls from participating in girls’ sports. West Virginia argues that its statute does not violate Title IX because it makes no distinction on the basis of gender identity and does not violate the Equal Protection Clause because it passes intermediate scrutiny based on the state’s interest in competitive fairness. B.P.J. argues that the statute violates Title IX by discriminating against transgender girls and violates the Equal Protection Clause because the statute is not substantially related to the state’s goal of competitive fairness. This case raises significant concerns about fairness within women’s sports and the safety of transgender and cisgender athletes.

Questions as Framed for the Court by the Parties

(1) Whether Title IX of the Education Amendments of 1972 prevents a state from consistently designating girls' and boys' sports teams based on biological sex determined at birth; and (2) whether the equal protection clause of the 14th Amendment prevents a state from offering separate boys' and girls' sports teams based on biological sex determined at birth.

In April 2021, West Virginia passed H.B. 3293 (the “Act”), a statute preventing students who were biologically male at birth from participating in contact or competitive sports designated for female students. W. VA.

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