Updated January 13, 2026 at 3:52 PM EST
The U.S. Supreme Court appeared sympathetic Tuesday to state laws banning transgender athletes from competing in girls' and women's sports.
The complexity of the issue was summarized by Justice Brett Kavanaugh who said: "I hate, hate that a kid who wants to play sports might not be able to play sports. ... [But] It's kind of a zero sum game for a lot of teams. And someone who tries out and makes it, who is a transgender girl, will bump from the starting lineup, from playing time, from the team, from the all league and those things matter to people big time, will bump someone else."
Tuesday's cases were factually very different. One involved an Idaho college student barred by state law from trying out for the Boise State University varsity women's track team. The other case was brought by a West Virginia middle school student barred by state law from competing in school sports.
Justices pressed Hashim Moopan, the government's lawyer, on a series of hypotheticals.
"What about the hypothetical I posed earlier, that when it comes to high school performance, girls are sure a lot better than than boys, and so we're only going to have remedial classes for boys, and girls aren't free to attend," Justice Neil Gorsuch said.
"I don't think those differences are based on inherent biological differences," Moopan replied.
"Well, let's say, let's say, I've got really good science," Gorsuch replied. "I mean, it's all about the science, right? I got the science."
"I don't think the sort of pseudoscience you're suggesting has been baked," Moopan replied.
"It's not pseudo—it's good science," Gorsuch replied.
Justice Elena Kagan jumped in at this point: "It's not pseudoscience to say boys brain development happens at a different stage than girls does."
Moopan argued, "I don't think there's any science anyway that is suggested that these sort of intellectual differences are traceable to biological differences."
"With respect," Gorsuch said, "I don't think you're a PhD in this stuff ... but I'm asking to deal with the hypothetical."
To date, 27 states have enacted laws barring transgender participation in sports. Supporters say the laws are needed to ensure fairness in athletic competition and to prevent athletes whose assigned sex at birth was male from having an unfair advantage in women's sports. Opponents of these laws say they discriminate based on sex, in violation of both federal law and the Constitution's guarantee to equal protection of the law.
Although the Supreme Court in 2020 ruled that the federal law barring sex discrimination in employment extends to gay and trans employees, the court more recently has upheld state laws that ban hormone and other treatments for minors suffering from gender dysphoria; it has left in place President Trump's order to rid the military of trans individuals; and it has also required passport applicants to list only their assigned sex at birth.
This is a developing story and will be updated
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