After Transgender Athlete’s Latest Win, Women’s Sports Advocates Hope for Supreme Court Intervention

A federal court’s decision last week to allow a biological male at San Jose State University to compete in a women’s collegiate volleyball tournament added yet another layer to the growing patchwork of legal rulings surrounding transgender athletes. That case is still working its way through lower courts, but the decision has led opponents to renew their pleas for a Supreme Court ruling on the issue.

As the High Court sits on at least three cases centered on transgender athletes, piecemeal decisions like the San Jose State ruling will become increasingly common and cause the legal landscape to constantly shift, court observers say. Twenty-five states have passed laws that bar transgender athletes from competing on opposite-sex sports teams. Federal appellate courts blocked four of those, while a district judge dismissed a challenge to one in Florida.

The Supreme Court did rule that the Biden-Harris administration can't enforce its sweeping rewrite of Title IX, which expands sex-based protections in schools to apply to gender identity, a move that critics say will allow biological men to compete on women's sports teams. Still, that ruling caused further confusion, as it only temporarily applies to the 26 states suing the administration to stop the Title IX changes.

"[It’s] a crazy thing to say: We don’t know if women’s sports are legal or not," said May Mailman, a senior fellow at the Independent Women’s Forum, which advocates for female sports. "The Biden [Title IX] regulation said that women’s sports are categorically illegal, effectively; men have to be allowed in women’s spaces and locker rooms."

"The Supreme Court really needs to come in and give some guidance," she added.

Instead, the Supreme Court heard a separate transgender case on Wednesday: the Biden-Harris administration’s challenge to a Tennessee law prohibiting medical interventions like hormones and surgeries on minors for gender transitions. Justice Brett Kavanaugh repeatedly asked if a ruling would affect other transgender issues, including sports. Solicitor General Elizabeth Prelogar and an American Civil Liberties Union attorney said the sports question should face a separate constitutional review independent of the Tennessee ruling.

"It’s obviously a different set of governmental interests that are being asserted there, and those would have to be analyzed in their own right," Prelogar said.

But the Supreme Court appears reluctant to wade into the sports issue. The ACLU secured injunctions in appeals courts against Arizona, Idaho, and West Virginia over the past four years, blocking laws that required athletes to play on teams aligning with their birth sex. The Court hasn’t responded to those states’ requests to take up their cases.

The apparent reluctance "could be some cowardice on the part of the justices because they’re thinking that [President-elect Donald Trump’s] Justice Department will voluntarily dismiss its case on the state of Tennessee and they could get away without determining a really controversial case," said Heritage Foundation senior legal fellow Sarah Parshall Perry.

Still, Perry expects the High Court will eventually have to address the issue. "We know it is an inevitable outcome," she said.

In the meantime, the rules surrounding transgender athletes continue to become more patchwork across the nation.

Most recently, 11 women sued the Mountain West Conference and San Jose State officials last month, alleging that allowing biological men to play in women’s sports violated their rights under the Constitution and Title IX. They also requested an emergency injunction to prevent Blaire Fleming, a biological male who plays volleyball for San Jose State’s women’s team, from participating in the Mountain West championship tournament over Thanksgiving weekend. Among the plaintiffs are fellow Spartans, including co-captain and Fleming’s former roommate, Brooke Slusser, players from other teams in the conference, and a San Jose State assistant coach who was suspended after filing a Title IX complaint alleging the university and head coach showed favoritism to Fleming.

An appellate panel’s Nov. 26 ruling in the case underscores the growing legal uncertainty surrounding the issue: It upheld the lower court’s decision from a day earlier that allowed Fleming to play, arguing that the plaintiffs failed to show that allowing Fleming to compete would cause irreparable harm. But it also wrote that their claims "appear to present a substantial question and may have merit."

The case also underscores the sorts of concerns that will surface absent a Supreme Court ruling. Fleming’s participation was a constant issue for the conference and affected the volleyball season, even beyond claims that the athlete had an unfair advantage playing against biological women. In protest against Fleming, five teams forfeited to San Jose State, including one during the Mountain West tournament, citing concerns for their physical safety as well as competitive fairness.

The Spartans made it to the conference finals, putting them one win away from securing a slot in the NCAA national volleyball championship. They lost that game, ending their season and Fleming’s career, but the suit against the Mountain West’s transgender inclusion policy will continue.

However case is decided will likely add to a rapidly shifting legal landscape.

"It can’t happen soon enough that the [Supreme] Court takes one of these cases, but it’s hard to know what they’re going to do," said Bill Bock, a lawyer from the firm Kroger Gardis & Regas, who represents the college volleyball women suing the Mountain West Conference.

In addition to wins in Arizona, Idaho, and West Virginia, the ACLU also won a lawsuit to block Utah’s law that prevented trans athletes from competing with the opposite sex. The group also sued Indiana, but it dropped the case after its lead plaintiff switched to a charter school.

In Montana, the state supreme court ruled in April that the Treasure State’s ban is unconstitutional for collegiate sports, but can be enforced in K-12 schools. And in Connecticut, four women who ran high school track against two biological males are suing the state over its mandate to let transgender athletes compete against the opposite sex. A federal judge initially dismissed the lawsuit in 2021, but last month denied defendants’ request for another dismissal after an appeals panel sent it back to the lower court.

The judge wrote that the case "presents a direct conflict between two interests protected by Title IX: the interest in providing fair competition for biological females, which has long been recognized as a significant governmental interest … and the interest in providing transgender girls with opportunities … which is now protected by a Connecticut state statute."

The Mountain West case belongs to a slightly different category since a privately run athletic conference, rather than a law or policy, is at issue. A group backing the plaintiffs, the Independent Council on Women’s Sports (ICONS), is also behind a similar complaint against the NCAA for allowing transgender swimmer Lia Thomas to compete in the female category.

Meanwhile, the issue is increasingly affecting outcomes in the sports world—and seizing national attention. President-elect Donald Trump made trans issues central to his campaign, and the topic is now dividing the Democratic Party. Last year, a Gallup poll found that nearly 70 percent of Americans believed transgender athletes should compete against members of their own sex. That also represented a 7-point increase from two years prior.

Tallies vary of how many biological boys and men have affected women’s sports. A United Nations report found that as of March 2024, more than 600 female athletes across more than 400 contests have lost nearly 900 medals. ICONS cofounder Kim Jones said any totals are likely significant undercounts given the difficulty in confirming details.

Jones expects transgender athletes will eventually be pushed out of women’s sports. But female athletes who lived through the effort will be left with long-lasting effects, she said.

"It’s going to take many of the girls subjected to this decades to look back and wrestle with this," Jones said. "You survive it in the moment, but it’s so patently obvious to you that what you’re being put through is absurd."

"Everyone knows what a woman is. Everyone knows this isn’t fair," she continued. "So when we decide that collectively it’s better for us to just be quiet while watching women and our daughters thrown under the bus, we’ve lost our basic moral backbone."

San Jose State University and the Mountain West Conference did not respond to requests for comment.

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