The U.S. Supreme Court on Jan. 13 leaned towards upholding laws in Idaho and West Virginia that prohibit males from playing on females’ school sports teams.

The nation’s highest court heard almost three-and-a-half hours of back-to-back oral arguments in Little v. Hecox and West Virginia v. B.P.J.

In these cases, Idaho and West Virginia argue that their respective laws are consistent with the 14th Amendment to the U.S. Constitution.

The amendment’s equal protection clause says no state “shall ... deny to any person within its jurisdiction the equal protection of the laws.”

The states also say their laws do not violate Title IX, a federal civil rights law that forbids sex-based discrimination at any school that receives federal funding.

The athletes who brought challenges to the two state laws are males who identify as female and want to play on female teams at their respective schools.

The state laws forbid males from participating in female school sports.

The athletes argue that the laws violate the equal protection clause and Title IX.

University student Lindsay Hecox sued over Idaho’s Fairness in Women’s Sports Act.

A federal district court issued an order allowing Hecox to try out for women’s track and cross-country teams. The court said there are “physiological differences” between females and males, but that does not “overcome the inescapable conclusion that the Act discriminates on the basis of transgender status.”

The U.S. Court of Appeals for the Ninth Circuit affirmed, holding that laws making sex-based distinctions in schools serve as “proxy discrimination” against transgender-identifying athletes.

High school student B.P.J. sued to block West Virginia’s Save Women’s Sports Act.

A federal district court allowed the state law, finding there was “no genuine dispute that biological males have physiological advantages over biological females.”

The U.S. Court of Appeals for the Fourth Circuit blocked the law, finding the district court was wrong to rule for the state because “there is a genuine dispute of material fact” over whether those born male “enjoy a meaningful competitive athletic advantage over” young women born female. The circuit court also held that the district court should have granted summary judgment to B.P.J. on his Title IX claim because the state law unlawfully excluded him from participating in sports.

During the Jan. 13 oral arguments, Idaho Solicitor General Alan Hurst said his state’s law treats all males and females equally. The law “classifies on the basis of sex because sex is what matters in sports ... [and] gender identity does not.”

Males have “countless athletic advantages” and this has led to males injuring females in sports. “If women don’t have their own competitions, they won’t be able to compete.”

The other side is “seeking special treatment for males ... but only if those males also identify as transgender,” Hurst said.

Justice Sonia Sotomayor told Hurst his argument for evaluating the constitutionality of the law using the rational basis test, the least demanding standard, “makes no sense to me.”

“By its nature, that’s a sex classification, and all sex classifications we have said repeatedly in our case law require intermediate scrutiny,” she said.

Under rational basis review, a government action will be upheld if it is rationally related to a legitimate government purpose. Under the more demanding intermediate scrutiny standard, which is often involved in sex or gender identity cases, a government action will be upheld if it is substantially related to an important government goal.

After Hurst said 23 states allow transgender athletes to compete, Justice Brett Kavanaugh asked if those states are violating the constitutional rights of “biological girls and women by allowing that.”

Hurst said he has “not yet been persuaded by a constitutional theory that would let us use the equal protection clause to impose our policy on other states in this matter.”

Justice Samuel Alito asked Hecox’s attorney, Kathleen Hartnett, for a definition of sex.

“For equal protection purposes ... what does it mean to be a boy or a girl or a man or a woman?” he said.

Hartnett said she didn’t have a definition.

Alito asked, “how can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?”

Alito told Hartnett, “There are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them.”

“What do you say about them? Are they bigots? Are they deluded in thinking that they are subjected to unfair competition?” he said.

Hartnett replied, “I would never call anyone that,” adding that “you don’t legislate based on undifferentiated fears. You base it on trying to make a rational response to what is a perceived issue.”

Kavanaugh told Hartnett that since Title IX was enacted, the growth of female sports has been “inspiring.”

He said the federal government, the Olympic Committee, and other organizations believe that allowing “transgender women and girls to participate will undermine or reverse that amazing success and will ... create unfairness.”

Some females might lose medals by competing with a transgender athlete and that’s a “harm ... we can’t sweep aside,” Kavanaugh said.

Responding to a question from Alito, U.S. Department of Justice attorney Hashim Mooppan said that Title IX should be viewed as tying sex to biological reproduction, as opposed to gender identity.

“We think it’s properly interpreted pursuant to its ordinary traditional definition of biological sex and ... given the time it was enacted, reproductive biology is probably the best way of understanding that,” Mooppan said.

Chief Justice John Roberts said the court’s landmark 2020 ruling in an employment discrimination case known as Bostock v. Clayton County may not have a bearing on this case.

Roberts voted with the majority in that case, which found that the word “sex” in Title VII of the federal Civil Rights Act encompassed the idea of gender identity.

“The question here is whether or not a sex-based classification is necessarily a transgender classification,” Roberts said.