The Supreme Court sharply questioned on Tuesday how much competitive advantage biological males have over biological females in sports, during arguments Tuesday in a pair of cases over state laws over women’s sports.
During arguments in Little v. Hecox and West Virginia v. B.P.J. at the Supreme Court, the justices grappled with whether that male athletic advantage can be suppressed by cross-sex hormones, and when during a child’s development those advantages start to appear.
Justice Amy Coney Barrett asked Idaho Solicitor General Alan Hurst if the considerations for the Idaho law, which restricts biological men from competing in women’s sports at any grade level, would change for a young, prepubescent child.
“So how would your theory play out if we’re talking about six-year-olds, where there’s no difference between boys and girls in terms of athletic ability, testosterone levels, et cetera,” Barrett asked.
Hurst responded by arguing the biological differences still exist between males and females, even at a young age.
“The record in this case does not support the notion that males lack an athlete advantage at six years old,” Hurst said. “That’s about as early as the science goes from what’s in the record. And even at that age, males have about a 5% athletic advantage over girls in most situations.
“Now, if this is not a level of competition where anybody cares about that, the simple solution is the solution you see in most places, which is you have co-ed sports, you don’t divide the teams based on sex, and everybody can play, and Idaho’s law does nothing to interfere with that,” he said.
When questioning Kathleen Hartnett, the lawyer for transgender athlete Lindsay Hecox, Barrett asked if suppressing testosterone would be enough to negate the physical advantage men have over women in sports.
Hartnett conceded that there are other factors at play that would be better left for a federal district court to work through, but she also claimed men or boys with larger builds who suppress their testosterone and take cross-sex hormones could be “in a worse position” athletically than a biological woman.
During arguments for the West Virginia case, which deals with a prepubescent biological boy rather than an adult man such as in the Idaho case, Justice Elena Kagan asked Joshua Block, the lawyer for B.P.J., if his whole argument rested on his client not having undergone normal male puberty due to medication.
“So your argument depends on [B.P.J.] not having a competitive advantage because [B.P.J.’s] not been
through male puberty?” Kagan asked, to which Block responded in the affirmative, also noting B.P.J. has triggered female hormonal puberty.
Barrett asked Block if a biological man would be allowed to play on a women’s team without having undergone the puberty suppression. Block said the medical treatment to block puberty is what negates the male biological advantage.
“I think that’s what’s happened here is, by virtue of [B.P.J.’s] medical care, B.P.J. has already effectively controlled for those sex-based advantages, and so [B.P.J.] is completely in the position that [B.P.J.] would have been if [B.P.J.’s] [biological] sex had been female,” Block said.
Most of the conservative justices on the high court seemed likely to uphold both Idaho and West Virginia’s laws restricting women’s sports to biological women, while the three liberal justices appeared likely to side with the biological male athletes suing over the laws.
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The Supreme Court is expected to release opinions in both cases by the end of June. The two cases are some of the most highly anticipated decisions still to come from the high court this term.
The pair of cases regarding women’s sports laws is among several other high-profile cases the justices have heard or will hear this term. Other notable cases include challenges to President Donald Trump’s sweeping tariffs, birthright citizenship, late-arriving mail ballots, and gun laws.