Right-Wing Justices Warm to Idea that Trans Minority Too Small to Challenge Sports Bans

On the heels of its landmark 2025 decision allowing red states to deny trans youth medical care, the Supreme Court on Tuesday heard arguments on another right-wing fixation: state laws that block trans girls and women from playing on women’s sports teams.

The Court heard two similar cases, Little v. Hecox and West Virginia v. B.P.J. — one brought by a trans woman in college, and one by a trans girl in middle school. They both involve constitutional challenges, and the middle schooler’s also brings a claim under Title IX, the federal law prohibiting sex-based discrimination in school programs. 

The justices spent most of their time during oral arguments on the equal protection claims, and seemed to coalesce behind a position that could have ramifications for small minorities beyond the trans community: that Idaho and West Virginia’s laws segregating student athletes based on sex at birth is permissible because they don’t discriminate against the vast majority of people. Even if they do discriminate against trans people, a lawyer for the Trump administration suggested Tuesday, the group is too small to bring a claim. 

Such a rule would seemingly eliminate “as-applied” equal protection challenges, where a law is unconstitutional when applied to a certain individual. It would only leave facial challenges, where the law is unconstitutional for everyone. 

“If you are that one person and you can show that this is unconstitutional as applied to you, I guess I don’t understand why it matters that it’s constitutional as applied to 99.9 percent of the other people,” Justice Ketanji Brown Jackson countered.     

Principal Deputy Solicitor General Hashim Mooppan replied that maybe such a claim would be valid if it applied to “one third” of people, but that the numbers in this case are too small.

In some ways, it’s an ironic commentary on the right’s obsession with issues that involve so few Americans. As then-West Virginia Governor Jim Justice (R) said when he nevertheless signed his state’s trans women in sports ban, he could not identify even “one example of a transgender child trying to get an unfair advantage,” adding that “we only have 12 kids, maybe, in our state that are transgender-type kids.”

But it would, should the justices adopt this line of thinking in their ruling, foreclose the obvious channel for trans people to challenge discriminatory laws, which have proliferated since the Republican party made anti-trans legislation a major policy plank. Idaho Solicitor General Alan Hurst said during arguments Tuesday that roughly half the states have similar sports bans to Idaho’s. 

The tea leaves in the trans sports cases were ominous since 2025’s Skrmetti, where the majority, led by Chief Justice John Roberts, reverse engineered itself into an opinion that allowing cis kids but not trans ones to get the same medical treatment is not discriminating on the basis of sex. But signs got even more dire as the Court displayed its eagerness to take up the trans sports cases, which are incredibly underdeveloped and still in a preliminary posture. The trans woman in the Idaho case, Lindsay Hecox, tried to drop the case, promising not to compete in women’s sports anymore due to the intensity of the negative scrutiny she’d received during litigation. Justice Sonia Sotomayor marveled Tuesday that Idaho would “force an unwilling plaintiff” to keep prosecuting the case.

The Court’s majority, alongside its right-wing institutional and media allies, has swung sharply to the right on LGBTQ issues, its ruling in Bostock — finding that an employer who fires someone for being gay or transgender violates Title VII — seeming ever more like an aberration. Roberts and Justice Neil Gorsuch were in the majority with the liberals on that 2020 case, with Gorsuch writing the opinion. 

They both seemed unlikely to make such a surprising ruling again, with Roberts jumping in Tuesday to assert how different the West Virginia case is from Bostock.