Updated January 13, 2026 at 4:47 PM CST
The Supreme Court's conservative majority seemed inclined Tuesday to uphold laws in 27 states that bar transgender girls from participating in sports teams at publicly funded schools.
Two transgender girls, one in college in Idaho, the other in fifth grade in West Virginia, wanted to be part of the track teams, but state law barred them from participating. Each of them went to court, contending that their respective state laws violate both the Equal Protection Clause of the Constitution and federal statutes barring discrimination against women in sports.
In more than three hours of argument, the Justices acknowledged the difficulty of the case. As in this exchange between between Justice Neil Gorsuch and Trump administration lawyer Hashim Moopan, who argued that some of the court's hypotheticals are based on pseudo-science, with Justice Elena Kagan chiming in, too.
"It's not pseudo-science," Gorsuch said. "It's good science."
"It's not pseudoscience to say boys' brain development happens at a different state than girls does," Kagan said.
"Well, with all respect, I don't think there's any science anywhere that suggested intellectual differences are traceable to biological differences," Moopan countered.
"Well, with respect, I don't think you're a Ph.D. in this stuff," Gorsuch replied. "And — and neither — I know I'm not."
Two of the justices, Gorsuch and Brett Kavanaugh, dominated the questioning, likely because of their personal connections to these issues.
Gorsuch, one of the court's most conservative members, authored the Court's 2020 decision declaring that the federal law banning sex discrimination in employment protects gay and trans workers from discrimination. Kavanaugh, a sports fanatic, has long coached his daughters and others girls' basketball teams.
"I hate — hate that a kid who wants to play sports might not be able to play sports," Kavanaugh said. "I hate than, but it's kind of a zero-sum game for a lot of teams."
But at another point he said: "For the individual girl who does not make the team or doesn't get on the stand for the medal ... there's a harm there, and I think we can't sweep that aside."
But Kavanaugh also seemed to suggest that states that want to allow transgender girls to participate in school sports perhaps should be allowed to do that.
"And those states that do allow it, is your position that they are violating the Constitution, the Equal Protection Clause rights of biological women and girls for violating that, or that it is up to each state to decide and the Constitution gives discretion to each state to allow it or not to allow it?" he asked.
During the argument, some members of the conservative majority appeared to want to write a narrow opinion.
"So how would your theory play out if we're talking about 6-year-olds, where there's no difference between boys and girls in terms of athletic ability, testosterone levels, et cetera?" Justice Amy Coney Barrett asked.
Gorsuch had a similar hypothetical.
"When it comes to high school performance, girls are sure a lot better than boys. And so we're only going to have remedial classes for boys, and girls aren't free to attend?" he asked.
A decision in the case is expected in the summer.
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