How to Lose the Case Without Losing the Game
Little v. Hecox, West Virginia v. BPJ, and the Big Burning Question We Didn’t Want Answered
It was never about sports.
And thank goodness for that.
This morning, on both the last day of Pride month and the last day of its term, the Supreme Court ruled that state laws banning trans athletes from competing on teams according to their gender identity do not violate either the Equal Protection Clause or Title IX.
If it was about sports, today would have been a devastating loss. And there are times as we process this opinion that it will feel that way - in part because, cumulatively, this has been a brutal term for trans people. For a Court that used to go years between LGBTQI rights cases, having to board this emotional rollercoaster four times in one term has been exhausting. On its face, every legal question they’ve decided has been different - free speech, free exercise, due process, equal protection, right to privacy, even international travel. There has been a wide variety of legal analyses and a wide variety of rationales. The one thing these cases have in common is that, every time the Court has had the rights of trans people on its docket, it has found a way to rule against the rights of trans people.
But it was never about sports. It was never about free speech or the practice of faith or renewing a passport. It’s about whether laws that protect people include trans people. It’s about whether we are people.
Going into today, I didn’t expect the Court’s answer would be yes. I just wanted the answer to not be no. And, incredibly, it was. There is no getting around the fact that today’s ruling is bad news. But it also could have been much worse news, and a burning question of law remains unanswered by a historically conservative Court we didn’t want answering it. This isn’t a loss we should have to take, but it is a loss we can take.
The Case
In case you’re the rare person who has stumbled on this Substack without knowing why (in which case welcome - we have a touch of depression today but also snacks), here’s a quick background.
Little v. Hecox and West Virginia v. BPJ were a pair of cases brought by student athletes living in states whose legislatures have passed laws prohibiting transgender students from playing on sports teams aligned with their gender identity. These laws applied regardless of whether the athletes have undergone medical treatments reducing or eliminating competitive advantage (one plaintiff was 15 at the time of the litigation, and had been on puberty blockers and estrogen her entire adolescent life). The students challenged their respective state laws under the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972.
Given the Court’s current makeup and recent history, many of us were wary it could rule that intersex and transgender students are exempt from Title IX protections against sex discrimination altogether. It could also have ruled that states can pass laws making classifications based on gender identity under a level of analysis that provides virtual impunity under the Equal Protection Clause of the Fourteenth Amendment. It could pretty easily have issued a broad opinion cementing the status of a disfavored group, written by a historically conservative Court.
It did not.
Here’s what it did do.
Title IX
There are two main laws at issue here. We’re going to start with Title IX because it relates more directly to athletics. Frankly it’s also shorter, and I’m of the opinion that there’s something vaguely homophobic about forcing me to care about sports. But this part also doesn’t require us to get into the genuinely fun history lesson coming in the next section.
Title IX of the Education Amendments is a federal law, passed in 1972, providing that no person may “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program of activity receiving federal financial assistance.” Two years later - after a glitchy beta test - Congress passed the so-called Javits Amendment, which added a few provisions to account for reasonable exceptions to strict equal treatment specifically in the realm of sports. That amendment is very, very important to today’s ruling.
But, for all the attention the single-digit number of competitive trans athletes in this country get, the vast majority of Title IX complaints filed with the Department of Education Office for Civil Rights based on gender identity from 2021-2025 weren’t about trans students who want to play sports; they were about trans students who were being verbally and physically harassed. (Notably, the majority of Title IX complaints based on sports also weren’t about trans students; they were about wildly unequal funding and facilities for girls’ teams). Many transgender students face significant mistreatment at school, and too often the bullying is so severe that it deprives them of the equal right to education promised by Congress.
That’s why it’s so important to clarify today’s ruling on Title IX was relatively narrow. What the Javits Amendment allowed the Court to say is that there is something unique about school sports that is not true of school generally - or other nondiscrimination laws generally. The opinion refers twice to the “distinctiveness” of competitive sports. Does that make the ruling right? Absolutely not. It is, both legally and ethically, a mess. But it’s important to note that, in the same breath that Justice Kavanaugh gave schools permission to discriminate against trans students on the field, he explicitly clarified that logic doesn’t apply off the field.
In other words, we lost some sports in some states. There’s no denying these bans will cause real pain to real kids whose lives are changed by athletic programs, for whom learning to play means learning to play together. But, while the Court permitted sports bans, it did not require them - schools in states without bans are still free to let everyone play. And, most importantly, we did not lose the right to equal and safe schools. Discrimination against transgender and intersex students in educational programs remains illegal.
Equal Protection
Going into today, what was keeping me up at night (literally - I cannot wait to stop waking up at 6am clicking refresh on SCOTUSBlog) was whether the Court was going to set some devastating precedent under its Equal Protection analysis impacting just about every civil rights case on discrimination against LGBTQI people from here on out by answering a burning question it has been avoiding for 40 years.
It did not.
If you don’t feel like peeking too far into the weeds, I’ll just tell you now that I’m going to sleep a bit better tonight. But, if you’re curious of spirit, here’s a very short description of a very big thing: heightened scrutiny.
When the Court hears a challenge to a law that treats people differently based on a particular characteristic, it doesn’t always give it the same degree of side-eye. It’s inclined to be more suspicious of some reasons for distinguishing between people than others - based on things like a history of prejudice and stigma, the immutability of the trait, and powerlessness in the political process. Understandably, it’s less likely to trust the government to make classifications based on race than classifications based on, for example, wealth or age. Our government doesn’t exactly have a great track record on race.
Historically, the Court has applied three levels of scrutiny to these laws. (Sort of. More on that in the next section.)
Strict Scrutiny: The government must prove the law is narrowly tailored to achieve a compelling government interest. This is the highest level of suspicion the Court uses, and only for laws that impact suspect classes. It’s mostly reserved for classifications based on race, national origin, or religion (or laws that burden a fundamental right, like voting or marriage).
Intermediate Scrutiny: The government must prove the law is substantially related to an important government interest. This is where we get into quasi-suspect classes: ones that still deserve some side eye, but whose questionable record with the government isn’t as severe as the suspect classes. This level is most famously used in the context of sex discrimination. The Court hasn’t historically had a lot of trust in the government when it’s passed laws that distinguish between women and men, but it also acknowledges there are more situations in which it’s reasonable to account for a difference. Not for nothing, the last time the Court recognized a new quasi-suspect class was 1982, when it applied it to children of undocumented immigrants in a case called Plyler v. Doe.
Rational Basis Review: The government must prove the law is rationally related to a legitimate government interest. This is the grab bag that applies to everyone else. It’s a super easy standard to meet, and only requires that the government at issue show that it wasn’t totally out of its legislative mind.
Now here’s the interesting thing. To date, despite ruling on four (now five) cases on whether a law targeting LGBTQI+ people violated the Equal Protection Clause - and mentioning it in the analyses of several more cases - the Supreme Court has never definitively said where sexual orientation and/or gender identity fit into that Equal Protection analysis. At just about every opportunity, it has sidestepped the question.
Ready for the history lesson?
A Brief History of Gay Crime
(or at the least criminal and civil cases with an Equal Protection analysis)
Bowers v. Hardwick (1986) - This isn’t technically the first LGBTQI+ case the Court ever hears, but it is the first case for which it issues a substantive ruling on the merits. And it’s a bad one, upholding the right of a state to criminalize sodomy under a different part of our workhorse Fourteenth Amendment - the Due Process Clause. Justice White’s majority opinion doesn’t touch the Equal Protection Clause directly but, even 30 years ago, Justice Blackmun’s fiery dissent (substantially written by his openly lesbian clerk, Pamela Karlan) hints that there’s a question of scrutiny at play: “[A] claim under the Equal Protection Clause may well be available without having to reach the more controversial question whether homosexuals are a suspect class.” He does not answer that question. Frankly, if the Court wasn’t ready to answer the question yet then, we didn’t want it answering the question. Today is another one of those days.
Romer v. Evans (1996) - Ten years later, the Court rules that a state constitutional amendment prohibiting local nondiscrimination ordinances based on sexual orientation violates the Equal Protection Clause. While Justice Kennedy purports to be using rational basis review in the majority opinion, his analysis deviates an awful lot from the milquetoast level of suspicion usually given to state actions that don’t impact a quasi-suspect class. He refers multiple times to laws that “singl[e] out a certain class of citizens for disfavored legal status” and attacks it and other laws like it as “rais[ing] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Whatever level of scrutiny he’s using, it’s clear that it’s more than the Court has used for laws that differentiate based on other subjects of rational basis review. Many legal scholars begin referring to it as “rational basis with bite.” Nobody can really put their finger on what that means.
Lawrence v. Texas (2003) - If you know one LGBTQI+ Supreme Court case, it’s probably this one. In a landmark 6-3 decision, Justice Kennedy’s majority opinion overturns Bowers and strikes down laws criminalizing sodomy. Again, he opts to do so under the Due Process Clause rather than deal with the Equal Protection analysis. But Justice Sandra Day O’Connor (the first woman on the Court) writes an impactful concurrence. She says the quiet part out loud, naming what Justice Kennedy had only hinted at in Romer - that, because LGB people are a “politically unpopular group,” the Court is giving laws differentiating based on sexual orientation “a more searching form of rational basis review.” But she doesn’t name what that review is, or whether LGBTQI+ people constitute a quasi-suspect class. As frosting on the cake, Justice Scalia throws an absolute temper tantrum of a dissent about her observation, accusing the Court of signing on to the “homosexual agenda” by joining law schools’ “anti-anti-homosexual culture.” He also predicts (rightly - he was many things, but he was not stupid) that the majority’s reasoning is incompatible with laws prohibiting marriage equality.
United States v. Windsor (2013) - Another ten years goes by before Justice Scalia’s prediction is tested, thanks to certified badass Edie Windsor. For a third time, Justice Kennedy writes for the majority, striking down the Defense of Marriage Act - the 1996 federal law defining marriage as a union between a man and a woman. In the opinion, he cites back to Romer, his first LGBTQI+ rights decision, underscoring its premise that laws discriminating against LGBTQI+ people deserve “careful consideration.” But the burning question of scrutiny only gets hotter. Again, the Court sidesteps the invitation to formalize what that level of review actually is. The fingers of legal scholars continue their groping search for what the heck that means.
Obergefell v. Hodges (2015) - If you know two LGBTQI+ Supreme Court cases, this is the second. It’s also Justice Kennedy’s fourth (and final). In a landmark ruling, the Court holds that the Constitution protects the fundamental right to marry, and strikes down state laws defining marriage as a union between a man and a woman. The judicial reasoning is based, more or less, on the sexy unspoken romance between the Due Process and Equal Protection Clauses. As the dissent is quick to point out, though, it’s light on analysis. Justice Kennedy mentions scrutiny only once, in a section on the history of marriage. It remains unclear exactly where in the meeting of the clauses the decision rests, or what level of Equal Protection review the Court is applying. (Incidentally, in a post-Roe v. Wade world, this rhetorical ambiguity is part of why the overruling of Obergefell is pretty low on the list of things keeping me up at night. Sometimes there’s safety in the wibbly wobbly.)
Bostock v. Clayton County (2020) - The Court is changing fast. In just five years, Donald Trump has appointed two conservative justices (and is about to appoint a third). Which is why it’s so shocking when, 6-3 decision, a justice he put on the bench writes a majority opinion holding that Title VII’s prohibition on discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity. The ruling is monumental, but it’s not the part we’re interested in. This is a statutory case rather than a constitutional one. What we’re here for is Justice Alito’s extremely grumpy dissent, which contains a downright Scalian prediction about the not-identical-but-not-unrelated Equal Protection analysis. “By equating discrimination because of sexual orientation or gender identity with discrimination because of sex,” he says, “the Court’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review.” That standard of review is intermediate scrutiny. You can see why he’d be grumpy. May we live to see the day he’s grumpy again.
United States v. Skrmetti (2025) - The Court is now weighted wildly conservative. In the first of what will become many rapid-fire cases striking down the rights of LGBTQI people, it upholds state laws that ban gender-affirming care for trans youth. Justice Roberts - who has in many ways acted as Justice Kennedy’s swing vote successor - writes for the majority that these laws don’t violate the Equal Protection Clause. It’s devastating. But, curiously, it’s not as devastating as it could be. In a feat of logical acrobatics, Justice Roberts sidesteps the question again. He says the case “does not raise th[e] question” of heightened scrutiny because the laws differentiate on the basis of “age or medical use,” not gender identity. He leaves for another Court - maybe a better Court - the question of where in the Equal Protection analysis LGBTQI people fit, or whether we constitute a quasi-suspect class.
West Virginia v. BPJ & Little v. Hecox (2026) - Which brings us to today. It was never about sports. What this case was really about, or what I was interested in anyway, was whether the justices had any more appetite to speak on the burning question of where queer people fit in the Equal Protection analysis than they have for the last 30 years. The makeup of the Court is identical to what it was a year ago. The name of the game was scrutiny. And, in a rare bit of good news, they did not name it. “In these cases,” writes Justice Kavanaugh, “we need not definitively resolve whether rational basis review or intermediate scrutiny applies to transgender classifications.”
I’ll take it.
Happy Pride
For a few years there, people sort of waited until Not June to swipe at us queers. I’m not sure I can remember a month in my lifetime when we have more needed Pride. We began, on the very first day, with an Equal Protection opinion in which Judge Wilkins of the DC Circuit called the executive order banning trans people from the military “soaked in animus and dripping with pretext.” We end, on the very last day, with an Equal Protection dissent in which Justice Thomas of the U.S. Supreme Court equates being transgender with being mentally ill. Soaked in animus. Dripping with pretext.
Is today a good day? No. Is this a loss? Absolutely. What happened in that court chamber could take a lot of teeth out of constitutional protections for trans people. But, importantly, it doesn’t take trans people out of constitutional protections. This morning, as I breathed a sigh of relief realizing that the words I was reading would set us back years but not decades, it caught in my throat that not getting beaten worse is the win. Tonight, I’ll grieve along with every trans person who has read the news today that our hearts are in a state of permanent brokenness.
And. We are experts in breaking. Pride started with broken windows and slashed tires. It was born of devastation, and from the jaws of loss we seized our dignity, closed fists tight around our right to exist and have not let go for 57 years. Loss is where we were forged. I don’t wish our thick skin on the generation of youth reading this news today, but I do want them to remember we are at home in the fire and that they will always have a home with us. From Stonewall to the Great Hall, there is no win that will make us more worthy of dignity, and no loss that will make us less. We were then and are now too powerful to be weakened by weak men, whether they’re hiding behind billy clubs or white feather quills. What we saw today was not our loss. It was their weakness.
I can’t think of a single time in this nation’s history when increasing access decreased strength. Our institutions are always stronger when they protect more people. Today, an institution decided to protect fewer.
These are not the people we want answering any burning question. Let it simmer a little longer. We can take the heat.
As always, thank you for this fierce and accessible analysis. So much love for you.
SWCole at "your trans cousin" suggested your blog, and I am grateful for their recommendation. You've provided here a clearly explained primer on the dance that various compositions of SCOTUS have maneuvered for decades - on the level of scrutiny, on the actual hesitation to include all Americans in the promise of equal rights and equal protection under the law. Thank you.