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Updated January 14

The U.S. Department of Education launched 18 Title IX Wednesday, a day after the Supreme Court heard two challenges to state bans on transgender girls competing in sports consistent with their gender identity.

The probes are based on complaints to the Office for Civil Rights that accuse colleges and school districts of violating the law because they allow trans students to participate on girls’ sports teams.

鈥淲e will leave no stone unturned in these investigations to uphold women鈥檚 right to equal access in education programs鈥攁 fight that started over half a century ago and is far from finished,” Assistant Secretary for Civil Rights Kimberly Richey said in a statement.

The list includes the New York City schools, the Tacoma and Vancouver districts in Washington and the Hawaii State Department of Education. 

The U.S. Supreme Court on Tuesday appeared to support allowing states to decide whether to ban transgender athletes from competing in girls鈥� and women鈥檚 sports 鈥� an issue that has dominated the Trump administration鈥檚 education policy for the past year.

In two separate cases, attorneys for track athletes from Idaho and West Virginia argued that such restrictions violate trangender students鈥� constitutional right to equal protection under the law. They say that through medication, these athletes have reduced any sex-based physical advantages that would create unfair competition. The West Virginia case also questions whether the state鈥檚 ban violates Title IX鈥檚 right to equal educational opportunities for women and girls.

West Virginia’s law treats Becky-Pepper Jackson, a transgender 10th grader, 鈥渄ifferently from other girls on the basis of sex,鈥� Joshua Block, an American Civil Liberties Union attorney, told the court. The Bridgeport High School student, he said, took puberty blockers and went through 鈥渇emale puberty.鈥� It鈥檚 鈥渁bsolutely reasonable,鈥� for states to separate teams based on a biological definition of sex, he said, but argued that the states鈥� position is 鈥渋nvalid as applied to a discrete subset鈥� of people who have mitigated physical advantages.

But the conservative justices seemed reluctant to carve out an exception for trans students, even those who have taken steps to reduce any competitive advantage.  

鈥淚f we adopted that, that would have to apply across the board and not simply to the area of athletics,鈥� Chief Justice John Roberts said.

The court鈥檚 decision in the case could impact all with similar laws that prohibit trans girls from competing on teams consistent with their gender identity. 

Upon taking office, President Donald Trump moved aggressively to place restrictions on trans athletes and highlight the experiences of those who said they were either injured by a trans competitor or put at a competitive disadvantage. Through executive order, he said Title IX only applies to cisgender women and girls, while the Department of Justice is now suing and over allowing trans students to compete on teams consistent with their gender identity. LGBTQ advocates want the court to base its decision on the 2020 majority opinion in in which the court found that transgender employees are a protected class in the workplace. 

鈥淭his is unfair to me and every transgender kid who just wants the freedom to be themselves,鈥� Pepper-Jackson said in a recorded message last week. 鈥淚’ve had my rights and my life debated by politicians who’ve never even met me.鈥�

Education Secretary Linda McMahon, who attended the more than three hours of oral arguments, discussed the stakes for many women outside the court. 

鈥淎mericans have had enough of women and girls losing opportunities and being subjected to the indignity and danger of unfair competition due to the left鈥檚 warped application of federal law,鈥� she said.

 

The department pressured the University of Pennsylvania, for example, to no longer allow trans women to compete on women鈥檚 teams. As part of a , the university erased trans swimmer and issued apologies to swimmers who lost to her.  

Attorney Kathleen Hartnett, who represents Boise State University student Lindsay Hecox, who takes drugs to suppress testosterone, told the court that some trans students might even be at a disadvantage.  They have 鈥渢his larger frame with weaker muscles and no testosterone,鈥� she said.

But conservative advocates disagree. 

鈥淧hysiologically, males have a larger heart, lungs, more bone mass, more muscle mass and are taller than females,鈥� Beth Parlato, senior legal counsel at the conservative Independent Women鈥檚 Law Center, told 社区黑料. 鈥淚t is undisputed that males retain significant physical advantages over females, making sex-based categories essential to fairness and safety in women鈥檚 sports.鈥�

鈥楾reated as individuals鈥�

Inside the court, Hashim Mooppan, principal deputy solicitor general, argued for the Trump administration, saying that denying a 鈥渟pecial accommodation鈥� to a trans woman or girl is not discrimination.

But Justice Ketanji Brown Jackson, one of the liberal justices, questioned why Hecox didn鈥檛 have a claim. 

鈥淚n equal protection law,鈥� she said, 鈥淲e say all the time things like 鈥楶eople need to be treated as individuals and not as just as members of a group.鈥� 鈥�

Justice Brett Kavanaugh, one of the six conservatives on the court, said he 鈥渉ates鈥� that trans students might be denied an opportunity to participate in sports. He also questioned whether it鈥檚 right to 鈥渃onstitutionalize a rule for the whole country鈥� when the science is still evolving. But making a team or a starting lineup is a 鈥渮ero-sum game,鈥� he said. 鈥淭hose things matter to people, big time.鈥�

Observers believe the outcome could rest on how either Roberts or Justice Neal Gorsuch, who wrote the Bostock decision, rule. During Tuesday鈥檚 back-and-forth, Gorsuch asked whether transgender status could be considered an 鈥渋nsular class,鈥� considering the history of discrimination against them. But he joined the majority opinion that allowed Tennessee to restrict gender-affirming care for minors. 

鈥楴ot going to be satisfied鈥�

The court heard the arguments in the the U.S. Court of Appeals for the Eighth Circuit is set to take up another federal case involving trans athletes. , a nonprofit that opposes trans students participating in women鈥檚 sports, sued Minnesota officials over the state鈥檚 policy allowing athletes to compete on teams based on their gender identity.

鈥淭heir argument is that Title IX demands exclusion of trans athletes from girls鈥� teams, which is not going to be our position,鈥� said Brian Dittmeier, director of LGBTQI+ Equality at the National Women鈥檚 Law Center, which filed a brief in support of Minnesota. 

The decision in the Eighth Circuit case, he said, is likely to come before the Supreme Court rules in the Idaho and West Virginia lawsuits, and could 鈥渋nform the narrative鈥� in future cases. The Female Athletes United lawsuit, he said, shows that those opposed to allowing trans athletes to compete with women are 鈥渘ot going to be satisfied with a compromise of letting the states decide.鈥� 

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