WASHINGTON (CN) - West Virginia heads to the Supreme Court next week to defend a ban on transgender girls' participation in girls' sports against the lone teenager the law applies to. 

Court orders have allowed the 15-year-old student, identified as B.P.J. in court documents, to join the girls' cross country team since 2021 despite West Virginia's Save Women's Sports Act. But whether the justices greenlight her continued participation could have broad implications for transgender rights nationwide. 

"This case is monumental not only for West Virginia, but for our entire country," West Virginia Attorney General JB McCuskey said in a statement. "The outcome will impact the future of women's sports, the promises of Title IX and the safety of our daughters." 

Under West Virginia's Save Women's Sports Act, participation in girls' school sports teams is restricted based on biological sex and genetics at birth. The state said the ban was necessary to protect women's sports. 

A rule for one 

B.P.J. - who was later publicly identified as Becky Pepper-Jackson in the media - was 12 years old when, with the help of her mother, she filed a lawsuit challenging West Virginia's ban under the 14th Amendment and federal laws prohibiting sex discrimination in education.

"All I've ever wanted was the same opportunities as my peers, but in 2021 politicians in my state passed a law banning me - the only transgender student athlete in the entire state - from playing as who I really am," Pepper-Jackson told reporters in a recorded statement. "This is unfair to me and every transgender kid who just wants the freedom to be themselves." 

After being diagnosed with gender dysphoria, Pepper-Jackson began to socially transition to live consistent with her female gender identity in the third grade. She started puberty blockers in 2020 and hormone replacement in 2022, preventing her from ever experiencing male puberty. 

"Becky's not trying to get a leg up on anyone or demand special treatment," Heather Jackson, Pepper-Jackson's mother, said while seated next to her daughter. "She wants and deserves the same opportunities as any other girl in her school." 

A lot can change in three years 

In 2023, the Supreme Court sided with Pepper-Jackson on the emergency docket, allowing her to remain on her middle school track-and-field team. But in the nearly three years since her emergency docket win, the legal and political landscape have become more hostile to transgender rights. 

Last year, Trump issued executive orders rejecting the idea that people can transition to a gender that differs from their sex assigned at birth, prohibiting federal funding of gender-affirming health care and, with the high court's approval, banning transgender service members from the military. 

The National Collegiate Athletic Association subsequently reversed 15 years of precedent allowing transgender women to compete on women's teams after completing one calendar year of testosterone suppression treatment. Last February, the largest college sports governing body in the country instead banned their former policy after Trump threatened to pull federal funds from schools that allowed transgender women on women's sports teams. 

In June, the Supreme Court greenlit state bans on gender-affirming care for minors. While the decision originating from a Tennessee ban on hormone blockers for minors was celebrated by conservative advocates and states looking to limit transgender rights, the narrow ruling avoided key constitutional protections. 

When the court reviews Pepper-Jackson's case and a similar appeal from Idaho next week, the justices will have another opportunity to decide whether laws targeting transgender people qualify as sex discrimination. 

Cracks in the conservative block

Six years ago, the high court held an employer unlawfully discriminated against an employee for their transgender status in Bostock v. Clayton County. But some of the court's conservatives cast doubt on Bostock's holding last year. 

Justices Clarence Thomas and Samuel Alito, George H.W. Bush and George W. Bush appointees, respectively, noted explicit disagreement with Bostock in concurring opinions in Tennessee's case. Justice Amy Coney Barrett, a Trump appointee, concluded that advocates did not sufficiently prove transgender individuals have faced a history of documented discrimination.

Bostock's author, Justice Neil Gorsuch, another Trump appointee, was notably silent on whether the ruling applied outside of the Title VII context. 

West Virginia says Bostock does not extend to Title IX, which prohibits sex discrimination in any federally funded education program. The state argued its law advances Title IX's requirement of equal opportunity for the two sexes. 

"Title IX prohibits treating a person worse than another solely on account of his or her biological sex in an educational program," the state wrote. "It does not invalidate every distinction based on characteristics that might (or might not) touch on sex." 

Representing Pepper-Jackson, the ACLU countered that Title IX's protections are broader, prohibiting discrimination against any person because of an individual's sex.  

"Like an employer who fires employees for being transgender, a school administrator who discriminates against students for being transgender 'must intentionally discriminate against individual [students] in part because of sex,'" the ACLU wrote. "That is what Title IX's plain terms prohibit - 'and that should be the end of the analysis.'"

A one-sided dispute 

Idaho's case against Lindsay Hecox, a college student at Boise State University, focuses solely on discrimination claims under the equal protection clause of the 14th Amendment. 

As a freshman at BSU, Hecox sued Idaho - which similarly bans transgender women from women's sports - in hopes of trying out for the women's track team. Hecox didn't make the team, but she played for BSU's women's club soccer team for a time. 

No longer a part of either team, Hecox pushed the justices to find Idaho's case moot because it lacked a present or future dispute. She told the court that public scrutiny from the case led her to make the difficult decision to cease playing women's sports in any context. 

"I am afraid that if I continue my lawsuit, I will personally be subjected to harassment that will negatively impact my mental health, my safety, and my ability to graduate as soon as possible," Hecox wrote in a declaration to the court. 

The justices deferred a decision on Hecox's suggestion of mootness until oral arguments. 

Only 1% of the population

At the heart of the constitutional inquiry in both Hecox's and Pepper-Jackson's cases is whether transgender individuals qualify as a quasi-suspect class - groups that have historically faced de jure and de facto discrimination. 

In United States v. Skrmetti, Barrett, Thomas and Alito previewed how they might rule on the issue in concurring opinions rejecting transgender individuals as a quasi-suspect class. Idaho cited Barrett's concurrence as reason to evaluate its law under a lower level of scrutiny. 

"Suspect-class treatment flows only to groups whose membership is 'defined by a trait that is definitively ascertainable at the moment of birth' because members of those groups 'tend to carry an obvious badge' of their membership in the suspect class," Idaho wrote. "Here, the proposed classification arises only where subjective, innate gender identity conflicts with sex." 

Accounting for only 1% of the population, the ACLU argued that transgender people are a discrete minority without the ability to vindicate their rights through the political process. 

"Indeed, their lack of political power is made plain by the vast array of recent government actions targeting them," the group wrote. 

Transgender participation in sports has become a political lightning rod despite its rarity. NCAA President Charlie Baker told Congress that fewer than 10 transgender athletes out of over 550,000 total athletes participate in college sports. There is no official count of high school transgender athletes, but only 3.3% of students identify as transgender, according to the CDC. 

High profile cases have nonetheless garnered attention, most notably in the case of Riley Gaines. The former collegiate swimmer turned to political activism after tying for fifth place with University of Pennsylvania swimmer Lia Thomas, who became the first openly transgender woman champion in the NCAA women's division. 

Gaines and other collegiate swimmers submitted an amicus brief at the Supreme Court claiming Thomas' participation in the women's division disadvantaged them. 

Megan Rapinoe, two-time World Cup champion and former co-captain of the U.S. Women's National Team; Sue Bird, WNBA Champion and Olympic Gold Medalist; Brenda Villa, four-time Olympic medalist and former captain of the U.S. Women's National Water Polo team, and other professional athletes submitted a brief advocating for transgender women's right to play women's sports. 

"Trans women and girls are part of the women's sports community and if we allow for their systematic exclusion, we are opening the door to discrimination against any woman or girl who does not fit to the government's preferred standards of womanhood," Rapinoe wrote in the brief. "That sets us all back."

Dozens of parties varying from faith leaders to doctors to members of Congress submitted friend of the court briefs hoping to inform the high court's ruling. Despite the outsized attention, the Information Society Project at Yale Law School debunked data claiming transgender athletes were rampantly displacing their cisgender competitors. 

The project found transgender athletes at the high school level were between 0.0009% and 0.001% - as rare or even rarer than at the collegiate level, which is 0.002% of student athletes. 

"The narrative that transgender athletes are displacing cisgender girls and women in sports does not hold water," the researchers wrote. "Transgender athletes are an extreme minority in women's sports whose participation does not alter cisgender women's participation or competitive outcomes in sports in any meaningful way." 

Not the Olympics

Attorneys for Pepper-Jackson and Hecox say that through their medical care, both athletes have eliminated or prevented any of the physiological differences that give rise to athletic advantages between men and women. 

Joshua Block, an attorney with the ACLU arguing in favor of Pepper-Jackson, said that leaves a narrow question for the justices to rule on: whether states can prevent transgender athletes from playing girls' sports even if any real physiological differences that would provide an advantage have been eliminated. 

"Let's remember this is middle school and high school," Block said. "The reason we're talking about Title IX at all is that these are educational programs. This isn't the Olympics. This is part of education, and for many people, part of the experience of growing up." 

The Supreme Court will hear arguments on Jan. 13. 

Source: Courthouse News Service