Justice Ketanji Brown Jackson raised concerns during Supreme Court oral arguments on Tuesday about how a pair of state laws blocking transgender athletes from competing in girls' sports could discriminate against transgender people.
Jackson asked the solicitors general of Idaho and West Virginia, who appeared in court to defend the laws, similar questions about whether their states were improperly treating transgender athletes who identify as girls differently than biological girls.
"I guess I'm struggling to understand how you can say that this law doesn't classify on the basis of transgender status," Jackson said to Idaho Solicitor General Alan Hurst. "The law expressly aims to ensure that transgender women can't play on women's sports teams. So why is that not a classification on the basis of transgender status?"
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Hurst replied that Idaho's Fairness in Women's Sports Act hinged on a student athlete's sex, not transgender status.
"The legislature did not want to exclude transgender people from sports," Hurst said. "It wanted to keep women's sports women-only and exclude males from women's sports."
Jackson continued to press Hurst, asking: "But it treats transgender women different than ciswomen, doesn't it?"
In a separate case, Jackson asked West Virginia Solicitor General Michael Williams similar questions about his state's Save Women's Sports Act.
The high court heard arguments in both cases on Tuesday and is expected to issue a decision by the summer that could have far-reaching impacts.
A decision in favor of the states could allow the two states, as well as about two dozen others, to restrict transgender athletes who identify as women and girls from competing in female sports from elementary school through college. It could also influence other transgender policies across the country, depending on how broadly or narrowly the court rules.
In West Virginia, a 15-year-old who identifies as a transgender girl and is represented by the American Civil Liberties Union argued that the state law violated Title IX and the Constitution's equal protection clause.
"It's like a second-order discrimination, right?" Jackson asked Williams. "The first order is separating male from female. … The second order is separating transgender women from cisgender women, right?"
Williams told Jackson that the high court should only be carefully scrutinizing the law's requirement that the state distinguish between boys and girls in school athletics, not between biological girls and transgender athletes who identify as girls.
Jackson, a Biden appointee, continued to push the idea that West Virginia's law did not just divide boys and girls but also divided transgender people and those who identify as their sex at birth.
"You have the overarching classification - everybody has to play on the team that is the same as their sex at birth - but then you have a gender-identity definition that is operating within that, meaning a distinction, meaning that for cisgender girls, they can play consistent with their gender identity. For transgender girls, they can't," Jackson said.
The justice added that she wanted to examine the "notion that this is really just about the definition of who - that we accept that you can separate boys and girls, and we are now looking at the definition of a girl, and we're saying only people who were girl-assigned-at-birth qualify."
Williams argued that once the high court accepts that states are allowed to separate boys and girls in sports, disputes over how "girl" is defined could be reviewed under a less strict legal standard.
"But I don't think the Court needs to go as far as that," Williams added.
Jackson's focus on the definition of "girl" echoes a viral moment from her confirmation hearing to become a justice in 2022, when Sen. Marsha Blackburn, R-Tenn., asked Jackson to define "woman."
"I can't, not in this context. I'm not a biologist," Jackson had replied at the time.
Conservatives have frequently posed the question to transgender rights advocates, who, like Jackson, typically do not offer direct responses to a question that critics have said is loaded and designed to attack transgender people.
