That's the question presented in two companion cases that the Court agreed to hear, Little v. Hecox and West Virginia v. B.P.J. Note an important difference between this case and Skrmetti, which upheld state limits on certain kinds of youth gender medicine: In Skrmetti, the majority held that the state laws didn't discriminate based on sex, but here it's clear that the underlying law does discriminate based on sex, because it provides for separate women's sports teams. The question is whether the state may choose to define sex based on the particular biological criteria that it has selected.
An excerpt from the Ninth Circuit opinion in Little v. Hecox, which the Court will review:
Because the Act subjects only students who wish to participate in female athletic competitions to an intrusive sex verification process and categorically bans transgender girls and women at all levels from competing on "female[ ], women, or girls" teams, and because the State of Idaho failed to adduce any evidence demonstrating that the Act is substantially related to its asserted interests in sex equality and opportunity for women athletes, we affirm the district court's grant of preliminary injunctive relief to Lindsay Hecox….
We recognize that, after decades of women being denied opportunities to meaningfully participate in athletics in this country, many cisgender women athletes reasonably fear being shut out of competition because of transgender athletes who "retain an insurmountable athletic advantage over cisgender women." We also recognize that athletic participation confers on students not just an opportunity to win championships and scholarships, but also the benefits of shared community, teamwork, leadership, and discipline. Excluding transgender youth from sports necessarily means that some transgender youth will be denied those educational benefits.
However, we need not and do not decide the larger question of whether any restriction on transgender participation in sports violates equal protection. Heightened scrutiny analysis is an extraordinarily fact-bound test, and today we simply decide the narrow question of whether the district court, on the record before it, abused its discretion in finding that Lindsay was likely to succeed on the merits of her equal protection claim. Because it did not, we affirm the district court's order granting preliminary injunctive relief as applied to Lindsay, vacate the injunction as applied to non-parties, and remand to the district court to address the scope and clarity of the injunction.
