By Stuart Gaffney and John Lewis—
Today, we continue our discussion of two lawsuits the U.S. Supreme Court will decide this year involving the right and freedom of transgender girls and women to play in school sports. Becky Pepper-Jackson, a 15-year-old West Virginia girl whose story we told in Part 1, brought one of the cases. Becky is a transgender girl with absolutely no sex-based physiological advantages over other girls in sports, because Becky has taken medications for years to prevent her from undergoing any aspect of typical male puberty and that have enabled her instead to experience typical female hormonal puberty.
Lindsay Hecox, who brought the other case, is a 25-year-old Idaho transgender woman college student whose gender dysphoria is being treated with both testosterone suppression and estrogen such that “her circulating testosterone levels are typical of cisgender women.” A 2023 study commissioned by the Olympic Committee found that trans women like Lindsay, who underwent endogenous male puberty and are now on testosterone suppression and estrogen, may actually be at a disadvantage in key areas because, as Lindsay’s attorney explained at oral argument, they may have “a larger frame but not … the muscle and the testosterone to drive it.”
Becky, who brought her case when she was just 11 years old, simply wishes to continue playing on her school track and field team in shot put and discus as she has been able to do for the last four years, thanks to lower court interventions. Lindsay, who brought her case when she was a 20-year-old first year college student, had run track and cross-country in high school and wanted to try out for her college’s NCAA cross-country and track team. A lower court order enabled her to do so.
Lindsay, however, was too slow to make either team and participated in women’s club soccer and running instead. Subsequently, Lindsay attested in a sworn court declaration that she will no longer participate in school athletics so she can “focus on graduating without the extraordinary pressures of this litigation and related public scrutiny.” That declaration alone should mean that the Court should dismiss her case as “moot” without ruling either way on it. Nevertheless, the Court heard oral argument in her case last month.
Both Lindsay and Becky have been forced to endure their legal ordeals because the two states they live in, Idaho and West Virginia respectively, are among the 27 states, all with Republican-controlled legislatures, which have enacted categorical bans on transgender girls in school sports.
Lindsay’s home state of Idaho was the first state in the country to enact such a ban when it did so in 2020. It prohibits all “transgender women and girls from women’s and girls’ sports at all grade levels and in all circumstances.” The law extends “from primary school through college, and at every level of competition, from intramural to elite teams.”
The next year, Becky’s home state of West Virginia passed a similar categorical ban, also applying “even in intramural or non-competitive sports.” Its statutory language ensures that trans girls “could never participate in girls’ sports at any age or level of competition.”
Significantly, for many years before these laws were passed, Idaho, West Virginia, and many other states allowed transgender girls and women to participate in school athletics without incident. Idaho law permitted such participation if the student “had completed one year of hormone therapy suppressing testosterone under the care of a physician.” Idaho applied a similar NCAA rule to collegiate sports.
Prior to West Virginia enacting its ban, the West Virginia Secondary Schools Athletic Commission (WVSSAC) permitted trans athletes to participate in school teams in accordance with their gender identity if their school agreed to it. If another school challenged the student’s eligibility, WVSSAC would decide whether the particular student’s “participation threatened ‘competitive equity or the safety of teammates or opposing players.’”
Manufactured political hysteria about trans people, not any real threat to girls’ and women’s sports, occasioned the 27 categorical bans to be enacted. When Idaho passed its ban, it had absolutely “no history of transgender women and girls participating in competitive student athletics.”
Similarly, when West Virginia passed its exclusion, the state “had no known instance of any transgender person playing school sports.” The state education department had received no complaints about such matters, and its counsel derided the legislation as “much ado about nothing.” The governor upon signing the bill admitted that there were only perhaps 12 trans students in the entire state. To date, Becky is the only known trans student athlete in the state.
The 27 Republican-controlled states with bans, along with approximately the same number that prohibit trans youth from receiving medically necessary gender-affirming care, were part of unprecedented legislative efforts in the early 2020s to attempt to exploit societal prejudice and undermine the rights and well-being of trans people in many aspects of their lives for raw political gain. In 2024 alone, a staggering 691 bills targeting trans people were introduced in state legislatures and Congress, with legislators calling trans people “‘mutants,’ ‘demons,’ and ‘imps.’” The same year, the Trump presidential campaign took up the mantle by spending millions on ads ridiculing trans people, vilifying a minority group like never before in a modern presidential politics. The first day he returned to office, Trump issued a sweeping executive order attacking the rights, freedom, and dignity of transgender Americans.
As part of the briefing and oral argument in these cases, Hecox’s counsel reminded the Supreme Court that 20th century immigration laws were applied to deny transgender people from entry into the U.S., asserting they were “mentally … defective” and of “psychopathic inferiority.” Federal law defined people with “psychopathic personality” to encompass “sexual perversion,” including “transvestism.”
Shockingly, the U.S. Supreme Court upheld the federal law in 1967 as applying to “homosexuals and other sex perverts,” which would include trans people, in rejecting a gay man’s challenge to the law. It’s a decision that echoes the specter of judicial ignorance epitomized by Dred Scott.
Even more chillingly, 20th century eugenic sterilization laws applying to “sex perverts” were frequently understood to allow sterilization of trans people. By the 1930s, over 30 states had passed such laws. Hecox’s brief points out that “Idaho’s law applied broadly to all ‘moral degenerates and sexual perverts.’”
These 30 state laws passed in another era of anti-queer hysteria, coupled with the U.S. Supreme Court’s upholding immigration bans on “sex perverts,” should stand as a sobering cautionary tale as the Court deliberates on Becky and Lindsay’s cases today.
Trans people deserve equality and dignity under law. We will continue to discuss the legal issues at stake in these two cases in Part 3.
(All quotations come from briefing and oral argument at the U.S. Supreme Court.)
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed to making same-sex marriage legal nationwide in 2015. Today, they continue to educate and advocate for marriage equality and LGBTIQ+ rights worldwide.
6/26 and Beyond
Published on February 12, 2026
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