Susan's Place Transgender Resources

7 takeaways from Supreme Court arguments about bans on trans women and girls in sports

https://www.advocate.com/news/trans-athletes-scotus-takeaways

Christopher Wiggins (13 Jan 2026)

The U.S. Supreme Court on Tuesday heard nearly four hours of arguments in two cases, Little v. Hecox from Idaho and West Virginia v. B.P.J., that could define the future of transgender women and girls' participation in school sports nationwide.

Based on the tenor of the questioning, particularly from the Court's conservative majority, the justices appeared inclined to uphold the statewide bans.

Here are seven key takeaways from the arguments.

First, boys' and girls' teams are legal.

Second, the real fight is about whether transgender girls can ever be treated like other girls for sports.

Third, the states say they are not required to make case-by-case exceptions.

Fourth, the bans operate only in one direction — and the state admitted it.

Fifth, Justice Sonia Sotomayor said the bans look like sex discrimination.

Sixth, the court has not decided whether transgender people deserve stronger constitutional protection.

Seventh, the court may rule narrowly.

To my fellow community members, jurist, state or federal legislators who may find this:

We are witnessing a historic and systematic attempt by both state and federal authorities to redefine a specific class of people out of legal existence. This is not mere political disagreement. It is the construction of a legal architecture designed to isolate, exclude, and eliminate the transgender community from public life.

This moment demands clarity—from those who live under these laws, from those who enact them, and from those sworn to interpret and enforce the Constitution.

The Legal Framework: Why We Are a Suspect Class

What is unfolding across the United States is not an ordinary policy dispute. It is a systemic and coordinated legal project, advancing through statutes, regulations, executive orders, and agency directives, that targets a specific and identifiable population and seeks to dismantle its legal existence. State legislatures and the federal government are enacting hundreds of laws and regulatory actions each legislative season, all aimed at the same small minority.

That population is transgender people—roughly one to three percent of the public—now subjected to extraordinary government control over identity, family life, bodily autonomy, medical care, military service, and physical safety.

This scale and repetition matter. Democracies do not repeatedly legislate against the same tiny population by accident. When hundreds of bills are introduced, debated, and passed year after year—often using near-identical language across jurisdictions—that is not coincidence. It is coordination. And coordination of this kind is the hallmark of systemic discrimination.

State-Level Targeting and Identity Registries

Across the states, particularly in Republican-controlled legislatures, this coordination has produced sweeping laws that bar transgender people from medically necessary care, erase legal recognition, exclude us from schools and public spaces, censor speech about our existence, and criminalize parents and providers who follow established medical standards.

Transgender people are the only class for whom legislatures have attempted to dictate, by statute, what medically accepted care federal and state governments will allow doctors to provide and patients to receive. Supportive parents and medical providers have repeatedly noted that no other population is subjected to this level of government intrusion into individualized medical decision-making.

These measures are not neutral regulations of conduct. They are categorical exclusions that operate because of who a person is, not because of risk, efficacy, or harm.

In several red states, this effort has escalated into the quiet compilation of government lists of transgender people who attempt to update their legal documentation. Individuals seeking to amend birth certificates, driver's licenses, or other identity records have found their information recorded or retained outside ordinary administrative processes. When asked to disclose the purpose of these lists, state officials have refused to explain how the data will be used, who will have access to it, or how long it will be retained.

There is no benign administrative justification for secretly cataloguing members of a minority population. Historically, identity registries—especially when paired with exclusionary law—are recognized precursors to more severe forms of persecution. The refusal to disclose purpose is itself the warning.

Federal Escalation and the Redefinition of Sex

From there, the campaign escalates to the federal level.

The turning point came when the Trump administration formally redefined "sex" by executive order, anchoring it to rigid, binary classifications determined "at conception." This action did not merely reinterpret terminology. It denied the legal existence of transgender people while ignoring and overriding existing federal law as part of that process. Gender identity was removed from recognition not through legislation, but through executive fiat, immediately reshaping how every federal agency would treat transgender people despite longstanding statutory protections.

Federal agencies then moved systematically to operationalize this erasure. Civil-rights investigations involving transgender people were frozen or abandoned. Healthcare protections were withdrawn. Gender-neutral passport markers were suspended. Educational guidance recognizing transgender students was rescinded. Research funding related to transgender health was curtailed.

These were not isolated bureaucratic failures. They were coordinated administrative actions implementing a shared objective: the removal of transgender people from federal protection.

Exclusion from Military Service

One of the clearest illustrations of this exclusion is the categorical ban on transgender military service.

Transgender people served openly in the armed forces with unblemished records, meeting the same standards and deploying under the same conditions as their peers. Multiple internal reviews confirmed no adverse impact on readiness, cohesion, or effectiveness. Nonetheless, the federal government excluded them solely because of identity.

Courts have long recognized that exclusion from military service is a defining marker of second-class citizenship, historically imposed on racial minorities, women, and gay service members before those bans collapsed under constitutional scrutiny.

Federal Custody and State-Created Risk

The pattern continues most starkly within the federal carceral system.

The Bureau of Prisons mandated that transgender women be housed in men's facilities while simultaneously dismantling safeguards designed to prevent sexual violence. By instructing auditors to ignore standards recognizing gender identity as a risk factor for victimization, the federal government knowingly increased the likelihood of rape and assault for a defined group in its custody.

This was not negligence. It was the deliberate withdrawal of protection with full knowledge of foreseeable harm.

Animus Under Constitutional Law

In Equal Protection jurisprudence, animus does not require explicit hostility or slurs. The Supreme Court has defined animus as state action rooted in a bare desire to harm a politically unpopular group, or laws structured to impose special burdens on a single class without legitimate justification.

What distinguishes animus from ordinary policy disagreement is systemicity. Here, the same group is targeted repeatedly, across policy domains, by multiple levels of government, using different mechanisms that converge on the same result: exclusion, erasure, and exposure to harm. When laws are enacted not to solve a problem but to make a group's existence more difficult or dangerous, animus is present as a matter of law.

How Genocide Becomes Law

Under international law, genocide is defined as acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, including by deliberately inflicting conditions of life calculated to bring about a group's physical destruction.

Modern genocide does not begin with mass killing. It begins with legal definition, exclusion, and erasure. It begins when the state identifies a group, denies the legitimacy of its identity, withdraws protection, and constructs conditions of life that make continued existence as that group increasingly untenable.

When the state removes access to healthcare, criminalizes parents and doctors, compiles identity registries, excludes people from civic institutions like the military, strips legal recognition, and exposes a targeted group to foreseeable violence, it is engaging in conduct that genocide scholars recognize as early-stage genocidal action.

Based on the current set of facts, a genocide targeting transgender people and our community cleanly maps onto the situation as it exists in the United States.

Genocide Warnings and Scholarly Consensus

This conclusion has already been reached by genocide scholars. Experts affiliated with the Lemkin Institute for Genocide Prevention have warned that the United States is in the early-to-mid stages of a genocidal process targeting transgender people. Drawing on the work of Raphael Lemkin, they emphasize that genocide is defined not by body counts alone, but by the systematic destruction of a group's legal, social, and cultural existence.

International Law and Treaty Obligations

The United States is a party to the Genocide Convention, a ratified treaty that—under Article VI of the Constitution—constitutes the supreme law of the land. That treaty imposes an affirmative obligation not only to punish genocide, but to prevent it when warning signs are present.

Neutrality in the face of early-stage genocide is not permissible. Failure to act is itself a violation of binding treaty obligations.

Judicial Failure and Constitutional Obligation

Despite these obligations, the courts—including the Supreme Court of the United States—have allowed these attacks to proceed. The Equal Protection Clause imposes an affirmative obligation on every court in the land to prevent precisely this kind of majoritarian abuse.

Deference in the face of systemic targeting is not restraint. It is abdication.

Final Conclusion: Equal Protection of the Law Is Not Optional!

We began with a simple and unavoidable truth: transgender people are being targeted as a class through coordinated state and federal action. That truth now compels a constitutional conclusion.

Transgender people constitute a suspect class entitled to the Constitution's full and undiminished protection under the Equal Protection Clause. Laws and policies that target us as a group must be examined under strict scrutiny, not deferred to under rational-basis review or political convenience.

Courts must recognize transgender people as a suspect class and treat laws that burden us as presumptively unconstitutional unless the government can demonstrate a compelling state interest achieved through the least restrictive means. Legislatures must cease enacting laws that single us out for exclusion, punishment, or erasure. Executive agencies must abandon policies that deny our legal existence by administrative fiat.

There is no compelling state interest in denying medical care to one class of people, compiling identity registries, excluding a group from military service, or exposing a population to foreseeable violence. These policies fail strict scrutiny on their face because they are rooted in animus and unsupported by evidence.

The Equal Protection Clause exists precisely for moments like this. It exists to restrain the tyranny of the majority when a minority is identified as a problem to be solved rather than a people to be protected. A constitutional system cannot endure if courts permit animus to masquerade as policy or allow systemic harm to proceed unchecked.

We therefore demand—clearly, collectively, and without apology—that courts and legislatures treat transgender people as a suspect class and apply strict scrutiny to every law and policy that targets us as a group.

Our existence is not debatable.

Our rights are not optional.

And our equal protection under the law is not subject to political negotiation.