WASHINGTON − Becky Pepper-Jackson was in elementary school, already sure she was a girl despite being designated male at birth, when the nation took notice of two transgender athletes.
The debate over whether the high school runners in Connecticut had an unfair advantage richocheted around the country, prompting more than half the states to block transgender girls from competing on female teams.
In Pepper-Jackson's home state of West Virginia, lawmakers "reasonably expected that the mounting stories" of transgender athletes outperforming competitors because they're bigger, faster and stronger would soon reach their communities, state officialssaid.
In reality, Pepper-Jackson's lawyerssaid, the law enacted in 2021 banned exactly one transgender girl – who hadn't experienced typical male puberty − from participating on her school's cross-country and track and field teams.
"Rarely has there been such a disconnect between a law's actual operation and the claimed justifications for it," lawyers for the now 15-year-old told theSupreme Courtin advance of the Jan. 13 oral arguments about her casechallenging the law.
Trump: 'It's so demeaning to women'
The two sides may vehemently disagree over the phenomenon that West Virginia and 26 other states say they are addressing, but there's no question that the issue has seized national attention. Pepper-Jackson's lawsuit and another student's challenge to Idaho's ban are among the most significant cases the high court will be deciding this year.
PresidentDonald Trump's opposition to transgender women competing on female teams was a centerpiece of his 2024 campaign, and he'scounting on the policy stanceas a key issue in helping Republicans maintain control of Congress in this fall's midterm elections.
"The whole thing is ridiculous…and it's so demeaning to women," Trump said when hemockedtransgender athletes during a recent speech to House Republicans.
After returning to office for his second term last year, Trump quickly moved tocut off federal fundingfrom schools that allow transgender athletes to compete on female teams.
As part of an agreement with the U.S. Department of Education, the University of Pennsylvania last yearstripped the recordof former swimmer Lia Thomas, the first openly transgender athlete to win an NCAA Division I title.
The Justice Department received permission from the Supreme Court to help West Virginia and Idaho defend their laws during Tuesday's oral arguments.
Transgender athlete wants to drop her challenge
Lindsay Hecox, a transgender student at Boise State University who convinced lower courts to temporarily block enforcement of Idaho's ban, now wants to abandon her case.
In September, Hecox said she is no longer playing sports andasked the Supreme Courtto let her drop her challenge. Hecox said she's afraid she will be harassed and have trouble graduating if the high-profile lawsuit continues.
"From the beginning of this case, I have come under negative public scrutiny from certain quarters," Hecox told the court. "I also have observed increased intolerance generally for people who are transgender and specifically for transgender women who participate in sports."
Idaho's attorney general – who refers in legal filings to Hecox as a "male who identifies as a woman" − said it's too late for Hecox to back out. The court said it wouldn't rule on Hecox's request until after the oral arguments.
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Transgender rights boosted by 2020 Supreme Court decision
Despite the headwinds, transgender rights advocates hope to build on theirsurprise 2020 victorywhen the court sided with three employees who were fired because they were gay or transgender.
A 6-3 majority ruled that when the Civil Rights Act of 1964 barred workplace discrimination on the basis of "sex," that also covered sexual orientation and gender identity.
Pepper-Jackson's lawyers argue the same reasoning should be applied to the section of the Civil Rights Act barring sex discrimination in educational programs, Title IX.
But West Virginia says the situations are different. While an employee's sex is generally irrelevant in the workplace, biological differences are critical to fairness on the athletic field, the state argues.
"Sex affects athletic performance; gender identity does not," West Virginia's lawyers wrote in afiling.
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Constitution's equal protection clause
The justices will also debate whether Idaho's and West Virginia's laws violate the 14th Amendment's guarantee that laws will be applied equally to people in similar situations.
State officials argue that transgender females are not the same as babies assigned female at birth, so it's reasonable to treat them differently in athletic programs.
"We need to look at common sense," said Idaho Attorney General Raul Labrador. "I just think about ten years ago, if anybody would have told the vast majority of Americans that we were going to have a U.S. Supreme Court case where we're going to debate whether boys should be participating in girls sports, everyone would have thought it was preposterous."
Lawyers for the transgender students say the lower courts didn't get to fully test the disputed facts about what physical advantages may remain for someone like Hecox – who takes cross-sex hormones – or for Pepper-Jackson −who took medication to block the onset of puberty and secondary sex characteristics− before the cases were appealed to the high court.
Idaho and West Virginia argue elected legislators, not courts, should assess the evidence.
That's the route the Supreme Court took last year when a majority said states could resolve the "fierce scientific and policy debates" surrounding the issue of gender affirming care for minors.
Still, David Super, a professor at Georgetown University Law Center, said the Supreme Court could agree with Pepper-Jackson's attorneys that more fact-finding is needed.
"There's expert testimony in the record from both sides so they would have a very hard time deciding, 'Yes, this discrimination is justified because of unfair advantage' without letting the lower courts decide whether there is, in fact, evidence of unfair advantage," he said.
But Kate Redburn, an expert on trans rights at Columbia Law School, said the students are facing an uphill battle.
"A majority on the court has not seemed particularly friendly towards transgender rights cases," she said. "I don't think there's a lot of optimism about the outcome, but there are some questions about the extent of potential damage."
Lower courts sided with the transgender students
Lower courts sided with the transgender students at early stages of the litigation, ruling they were exempt from the bans as the challenges continued.
After hearing from experts on both sides about the effects of hormone therapy, a federal judge in Idaho found it more likely that Hecox did not have a physical advantage. But the judge said a trial woud be necessary to fully assess the scientific evidence.
Because her testosterone is being suppressed and she is getting estrogen, Hecox says her testosterone levels are typical of non-transgender women and her muscle mass and size, which presumably may have given her an advantage, had both decreased.
Before withdrawing from sports this school year, Hecox played soccer and ran on school club teams, the "no-cut" sports she turned to because she wasn't fast enough to make the competitive NCAA cross-country and track teams, according to her lawyers.
A 'plan to push transgender people like me out of public life'
Pepper-Jackson, who has lived publicly as a girl since the fourth grade, takes puberty-delaying medication and estrogen.
Still, West Virginia argues Pepper-Jackson retained a physical advantage that helped her place third in a state discus throwing competition and eighth in shot put last year.
Pepper-Jackson attributes her athletic achievements to hard work and practice and says her performance is "well within the range" of non-transgender girls her age.
"I play for my school for the same reason other kids on my track team do – to make friends, have fun, and challenge myself through practice and teamwork," she said in a statement.
She also said the case is not just about sports but is "one part of a plan to push transgender people like me out of public life entirely."
Non-transgender athletes speak out
The court has also heard from students who have competed against transgender athletes, arguing they've lost opportunities and feared for their safety.
Selina Soule, who ran high school track in Connecticut, said in a filing she missed qualifying for a 55-meter race by two spots while the two "biological males" who sparked the national debate that led to state bans made the cut. Although Soule qualified in other events at the regional championship, she said she lost an opportunity to impress college scouts.
"She felt deep distress, believing her effort and competitive strength as a female athlete were undercut by biologically male competitors with natural, physiological advantages, a feeling echoed by other female athletes in her shoes," Soule's attorney wrote in afilingsupporting the state bans.
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Trans athlete says her 'moderate success' was overplayed
Andraya Yearwood, one of the two transgender athletes Soule had complained about, said her "moderate success" as a runner was overemphasized by the media, fueling bans like Idaho's and West Virginia's.
Unlike girls she ran against in high school, Yearwood told the court in afilingopposing the bans, she was not recruited to run track at college.
Still, she said, competing on the track team gave her "confidence and purpose."
"Respectfully," her attorneys wrote, "Ms. Yearwood asks the Court to preserve that opportunity for other transgender girls."
This article originally appeared on USA TODAY:National debate on transgender athletes finally reaches Supreme Court