Neil Gorsuch Is the Wild Card in the Supreme Court’s Trans Athletes Cases

All eyes were on Justice Neil Gorsuch on Tuesday, as the Supreme Court deliberated two cases on the rights of transgender athletes.

The court appeared poised during oral arguments to uphold two laws, one in Idaho and one in West Virginia, that restrict trans athletes’ participation in women’s and girls’ sports. But Gorsuch cemented himself as a wild card among the court’s conservative justices when it comes to cases affecting LGBTQ+ people, undercutting the states’ arguments that they are not uniquely discriminating against transgender Americans.

The stakes of such an argument from Gorsuch are big; if the high court views transgender Americans as a protected class, and under a heightened standard of scrutiny reserved for discrimination cases, it would make it much more difficult to enact the kinds of laws Republicans are pushing targeting trans people. The Supreme Court tends to rule against laws it determines are discriminatory.

And on Tuesday, Gorsuch showed he was open to viewing these cases in that light.

“There’s another way to think about the case … that is that transgender status should be conceived of as a discrete and insular class, subject to heightened scrutiny in and of itself given the history of de jure discrimination against transgender individuals in this country,” Gorsuch said, challenging Alan Michael Hurst, Idaho’s solicitor general.

Hurst acknowledged that there has been “significant discrimination against transgender people in the history of this country,” but argued it’s not the same as discrimination against Black people and women.

Gorsuch pushed back on Hurst.

“You start by saying you don’t question that there’s a history of discrimination … and then you, well, but they don’t classify on that basis. How should we think about that?” Gorsuch asked, referring to transgender people.

Hurst responded by saying that laws that have been struck down that have discriminated against women and Black people, for example, explicitly mentioned them. Idaho’s law, he argued, does not specifically say it targets trans people.

Justice Sonia Sotomayor followed up on Gorsuch’s questions: “What do you do with the legislative history in this case, where the people who introduced the bill called it a ‘transgender bar’? In answering Justice Gorsuch, you said there is no evidence of that, but there’s certainly a lot of comments in this bill when it was passed.”

Hurst responded by saying that characterization was mentioned by the 9th Circuit Court of Appeals, which initially said the law was unconstitutional, but it’s actually not part of the legislative record.

When Kathleen Hartnett, the lawyer representing the trans kid in the case, took the stand, Gorsuch gave her an opportunity to address whether laws targeting trans people required the case to be evaluated under strict scrutiny, and asked her to respond to Hurst’s point that the laws don’t explicitly mention trans people.

“I’m curious why you haven’t brought that up?,” Gorsuch asked Hartnett.

“The term ‘transgender’ did not become more common until now,” Hartnett said. “We’re certainly not equating the experience of the transgender community to that of Black Americans or women. But just as illegitimate or nonmarital children has been recognized as a class that gets closer look, I think we respectfully submit here it would make sense to do so.”

Hartnett responded by talking about the history of discrimination against trans people in the U.S. However, she added that that is not her main argument because the Supreme Court “hasn’t recognized a suspect class for a long time.”

Even with this line of questioning, it’s unclear whether Gorsuch would side with the three liberal justices, who signaled they disagree with the anti-trans sports laws. Appointed by Trump in 2017, LGBTQ+ groups have looked at Gorsuch as a potential ally.

In 2020, Gorsuch authored the opinion in Bostock v. Clayton County, which decided that the Civil Rights Act of 1964 prohibits employers from discriminating against people “merely for being gay or transgender.”

Even if he did side with the bench’s liberal justices in these two cases — Little v. Hecox and West Virginia v. B.P.J. — one more justice would still be needed to join them in declaring that laws restricting trans athletes are unconstitutional to have a majority.

Ahead of the oral arguments, Republican attorneys general and anti-trans activists gathered in Washington, D.C., to support the state laws in Idaho and West Virginia.

“The reason that we are here is because Idaho and West Virginia passed common sense laws that delineates the athletic playing fields in our states between the sexes,” said JB McCuskey, the attorney general of West Virginia.

“We believe we’re right on the facts, we know we’re right on the Constitution, and we know we’re right on the law, but most importantly, we’re right on common sense,” McCuskey continued. He later added that “losing this case would be monumental.”

Currently, 27 states have laws in place prohibiting trans athletes from participating in female sports.

Raúl Labrador, the attorney general of Idaho, which was the first state to pass a trans sports ban, said such laws are necessary to defend “the girls that are trying to compete, to succeed in life, to have greater opportunities.”

The two cases are part of the several LGBTQ+ cases the Supreme Court is set to hear this term.

Back in October, the court heard arguments in a case evaluating whether states can prohibit conversion therapy, a practice that has been denounced by major medical organizations. At the time, the justices appeared to argue that such bans seemingly violated mental health counselors’ First Amendment rights, and some questioned whether conversion therapy actually harms minors.