WASHINGTON, DC – Following oral arguments at the Supreme Court this morning in Little v. Hecox and West Virginia v. B.P.J., cases in which the Court is considering whether laws in Idaho and West Virginia that prohibit all transgender women and girls from joining women’s and girls’ sports teams are constitutional, Constitutional Accountability Center Director of the Human Rights, Civil Rights, and Citizenship Program David Gans issued the following reaction:

More than 150 years ago, the Fourteenth Amendment added to the Constitution a universal guarantee of equality that protects all persons from state-sponsored discrimination. As the Supreme Court has repeatedly held, the Fourteenth Amendment protects persons, not groups. The reason for that is simple: the constitutional guarantee of equal protection is a personal right that safeguards all persons, including transgender women and girls who wish to participate on women’s sports teams and clubs, consistent with their gender identity. Excluding transgender women and girls who have mitigated any sex-based advantage they may theoretically possess from participation in women’s sports simply because of their sex at birth is inconsistent with the Constitution’s promise of equality for all persons.

Much of today’s argument focused on the question whether a plaintiff may bring an as-applied challenge to a sex discriminatory law. While a number of the Court’s conservative justices suggested that as-applied adjudication in the equal protection context is inherently problematic, as-applied challenges are the norm in constitutional law. Indeed, as our amicus brief in these cases observed, the Supreme Court has repeatedly permitted as-applied challenges to vindicate the personal rights to the equal protection of the laws. It should do so here.

Constitutional Accountability Center Appellate Counsel Joshua Blecher-Cohen added this reaction:

The Fourteenth Amendment’s express guarantee of equal protection applies to “any person.” In cases stretching back decades, the Supreme Court has made clear that this guarantee protects individuals from sex-based government discrimination. As questions from the Court about cisgender comparators underscored today, the challenged Idaho and West Virginia statutes single out transgender students like Lindsay Hecox and B.P.J. based on their sex.

Constitutional Accountability Center Vice President Praveen Fernandes also noted:

Time after time, lawyers defending these Idaho and West Virginia statutes attempted to obscure the fact that these statutes classify based on sex, and as such, must be subject to the heightened scrutiny that the Court’s own precedent has repeatedly required for all laws that draw distinctions based on sex.

It should come as no surprise that defenders of these statutes weaved and bobbed in this manner, as West Virginia’s and Idaho’s categorical bans on the participation of all transgender women and girls on women’s and girls’ sports teams—denying them equal opportunity to participate in public-school athletics—cannot withstand the scrutiny the Constitution demands.