The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Transgender Athletics Cases
They were not as combative as I would have expected, and maybe even not 6-3.
I have now finished reading the 250 pages of transcript in Little v. Hecox and West Virginia v. B.P.J. My global reaction was that the Justices were surprisingly not combative. After Skrmetti and Mahmoud last term, I was expecting a much more vigorous and contentious argument. But it was just the opposite. The Justices were surprisingly restrained. I don't think the vote here is 6-3. It might be 7-2, or maybe even 8-1 in favor of the government in both cases. Title IX is different than Title VII, and the Equal Protection issue here is different than the Equal Protection issue in Obergefell.
Perhaps the defining feature was Justice Kagan having a two-hour long discussion with all five lawyers about whether a plaintiff could bring an as-applied challenge for an equal protection claim. This was such a genuine and nerdy discourse. The advocates seemed surprised, and a bit frustrated, with how much time was being devoted to it. I'll talk about this issue later.
Maybe something could be said for the sequencing of the cases. Skrmetti and Mahmoud involved very thorny issues of parental rights to obtain medical treatment and parental rights to opt out of LGBT instruction. But Hecox and B.P.J. involved far simpler Title IX and Equal Protection analyses (putting aside the as-applied stuff for now). I think people genuinely do not understand all the nuances of transgender medicine but anyone who has ever watched a sporting event gets the issues in Hecox and B.P.J. I don't even think this issue is particularly polarizing. This is what Trump would call an 80-20 issue.
If the athletics case had come to the Court before Skrmetti and Mahmoud, the arguments could have been more contentious. Indeed, what if Grimm v. Gloucester County School Board, a bathroom case, was granted before Bostock was decided?
I think of Obergefell in a similar fashion. Thirty years ago, who would have thought that the Supreme Court would find a right to same-sex marriage five years before finding that Title VII bars LGBT discrimination. Sometimes, the Court does things out of order.
Finally, I think we have to account for the changing tides with regard to transgender issues. The public sees these matters far differently than a decade ago. The somewhat sedate arguments yesterday can be traced to the path already laid down.
