During her time in front of the justices, Hecox’s lawyer, Kathleen Hartnett, said that if the justices chose to consider the merits of her case, they should draw a distinction between athletes who take testosterone-suppressing drugs, like her client, and other transgender athletes.
Responding to a question from Kavanaugh about whether allowing transgender athletes to compete in women’s competitions would have an adverse impact on sports, Hartnett said she was not asking the court to allow individuals to compete who have an “unfair biological advantage”.
“That would undermine the entire point of separate sports in the first place, which was to allow women to have a place to thrive, to be strong, to win,” she said.
But if “sex-based advantages” were mitigated, she said, transgender athletes should be allowed to compete. She added that it would be incumbent on the transgender athletes to provide evidence of such mitigation.
Lawyers for both sides noted the small number of individuals at issue in this case. In West Virginia, the plaintiff, Becky Pepper-Jackson, is the only student seeking such access. Her parents filed the case in 2021, when she was 11 years old and sought to join her school’s girls track team.
When asked by Justice Neil Gorsuch whether there is a history of discrimination against transgender individuals that merited giving them special protections, Hurst, the lawyer representing Idaho, responded that while there had been “significant discrimination”, it was expressed in laws that applied to everyone, such as bans on cross-dressing.
Transgender individuals, he continued, did not face the kind of denial of civil rights that black Americans and women faced, for which the legal and constitutional protections in question were intended.
