In a closely watched pair of cases, the US Supreme Court appeared likely on Tuesday, January 13, to uphold state bans on the participation of transgender athletes in girls’ and women’s sports.

The conservative-dominated court heard more than three hours of arguments in separate challenges to state laws in Idaho and West Virginia banning transgender students from female competition. 27 US states have passed laws in recent years barring athletes who were assigned as male at birth from taking part in girls’ or women’s sports.

The Idaho case stems from the Republican-led state’s 2020 Fairness in Women’s Sports Act. The act was challenged by a transgender athlete at an Idaho university, and lower courts ruled that it violates the equal protection clause of the US Constitution.

“Idaho’s law classifies on the basis of sex, because sex is what matters in sports,” not gender identity, Alan Hurst, the Idaho solicitor general, told the court. “It correlates strongly with countless athletic advantages like size, muscle mass, bone mass and heart and lung capacity,” Hurst said. “If women don’t have their own competitions, they won’t be able to compete.”

Kathleen Hartnett, an attorney for the Idaho woman who brought the case, pushed back, saying the number of transgender girls who have “participated and excelled” in competitive sports are “few and far between.” Hartnett also argued that transgender girls who have undergone testosterone suppressant treatments do not have a competitive edge and have “mitigated their biological advantage of being born male.”

Justice Samuel Alito, one of the six conservatives on the nine-member court, took issue with that, saying “there is a healthy scientific dispute about the efficacy of some of these treatments.”

“There are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them,” added Alito. “Are they deluded in thinking that they are subjected to unfair competition?”

‘Harm’

West Virginia’s 2021 Save Women’s Sports Act was challenged by a middle school student who was not allowed to compete for the girls’ track team.

An appeals court ruled that the ban amounted to discrimination on the basis of sex and violated Title IX, the federal civil rights law which prohibits sex-based discrimination in educational programs. West Virginia Solicitor General Michael Williams urged the Supreme Court to reverse that ruling because it means schools “can no longer designate teams by looking to biological sex.”

“Instead, schools must place students on sports teams based on their self-identified gender,” Williams said. “But that idea turns Title IX, a law Congress passed to protect educational opportunities for girls, into a law that actually denies those opportunities for girls,” he said.

Justice Brett Kavanaugh, a conservative, appeared sympathetic to that argument. “I hate, hate that a kid who wants to play sports might not be able to play sports,” Kavanaugh said. “But it’s kind of a zero-sum game for a lot of teams. Someone who tries out and makes it who is a transgender girl will bump from the starting lineup, from playing time, from the team (…) someone else,” he said. “There’s a harm there.”

Kavanaugh also noted that the US Olympic Committee and National Collegiate Athletic Association do not allow transgender women to compete in women’s sports.

Those moves came after President Donald Trump issued an executive order in February that enables federal agencies to deny funding to schools that allow transgender athletes to compete on girls’ or women’s teams.

The Supreme Court is expected to rule in June or early July.