Demonstrators rally outside the U.S. Supreme Court on Tuesday, Jan. 13, 2026, as justices heard two cases on state bans of trans athletes. (Photo by Jane Norman/States Newsroom)

WASHINGTON — The U.S. Supreme Court’s conservative majority appeared likely Tuesday to keep in place laws in Idaho and West Virginia banning transgender athletes from participating on women’s and girls’ sports teams.

The outcomes from the nation’s highest court expected later this year could have sweeping implications for transgender rights more broadly as President Donald Trump’s administration’s efforts to roll back those rights have extended far beyond athletics. 

In lengthy, back-to-back oral arguments, justices heard two cases — Little v. Hecox and West Virginia v. B.P.J. — which both deal with whether those states’ bans violate the Equal Protection Clause of the 14th Amendment.  

The West Virginia case also calls into question whether its prohibition on transgender athletes participating in women’s and girls’ sports violates the  federal civil rights law barring sex-based discrimination in education programs known as Title IX. 

Rulings in lower courts have halted the two states from implementing the bans, to varying extents, leading GOP attorneys general in Idaho and West Virginia to ask the Supreme Court to step in. 

Idaho and West Virginia represent just two of the nearly 30 states with laws banning transgender students’ participation in sports consistent with their gender identity, according to the Movement Advancement Project, an independent think tank. 

During oral arguments in the Idaho case, Justice Brett Kavanaugh said he sees the growth of women’s and girls’ sports as one of the country’s great successes over the past half-century. 

He noted that some states, the federal government, the NCAA and the U.S. Olympic and Paralympic Committee “think that allowing transgender women and girls to participate will undermine or reverse that amazing success and will create unfairness.” 

He added that “for the individual girl who does not make the team, or doesn’t get on the stand for the medal, or doesn’t make all league, there’s a harm there, and I think we can’t sweep that aside.” 

Kavanaugh is part of the court’s conservative wing, whose members outnumber liberals 6-3.

Title IX debated

Kavanaugh’s comment seemingly endorsed West Virginia Solicitor General Michael Williams’ framing of the issue, as a protection of women and girl athletes. 

Williams told the justices that “maintaining separate boys’ and girls’ sports teams ensures that girls can safely and fairly compete in school sports.” 

He argued that Title IX “permits sex-separated teams,” and “it does so because biological sex matters in athletics in ways both obvious and undeniable.” 

Joshua Block, an attorney with the American Civil Liberties Union, argued on behalf of Becky Pepper-Jackson, a transgender athlete at the forefront of the West Virginia case.

Block said that though West Virginia “argues that to protect these opportunities for cisgender girls, it has to deny them” to Pepper-Jackson, “Title IX and the Equal Protection Clause protect everyone, and if the evidence shows there are no relevant physiological differences between B.P.J. and other girls, then there’s no basis to exclude her.”

Idaho case

Idaho’s solicitor general, Alan Hurst, argued that “gender identity does not matter in sports, and that’s why Idaho’s law does not classify on the basis of gender identity.” 

Hurst said the law “treats all males equally and all females equally, regardless of identity.” 

Kathleen Hartnett, an attorney with Cooley LLP, represented Lindsay Hecox, a transgender student in Idaho who wanted to try out for the women’s track and cross-country teams at Boise State University but would have been barred from doing so under the Idaho law because she is transgender.

A federal court in Idaho halted the law from taking effect in 2020. A federal appeals court initially upheld the ruling in 2023 but adjusted the scope of it in 2024 to only apply to Hecox, not other athletes.

Hartnett said the law ignored that trans girls who take medication to block testosterone do not have an inherent physical advantage in sports.

“Circulating testosterone after puberty is the main determinant of sex-based biological advantage that (the Idaho law) sought to address,” she said.

Hecox “has mitigated that advantage because she has suppressed her testosterone for over a year and taken estrogen,” Hartnett said.

The Idaho law, Hartnett said, “thus fails heightened scrutiny as applied to Lindsay and transgender women like her who have no sex-based biological advantage as compared to birth sex females.” 

Hecox has asked both an Idaho federal court and the Supreme Court to drop the case. Though a federal judge in Idaho rejected that attempt in October, the Supreme Court deferred the request until after oral arguments and could ultimately dismiss her case in the coming months. 

Issue actively debated

Earlier landmark rulings involving transgender rights came up before the court Tuesday — including United States v. Skrmetti in 2025 and Bostock v. Clayton County in 2020. 

In United States v. Skrmetti, the Supreme Court upheld Tennessee’s prohibition on gender-affirming care for minors.

The court held in Bostock v. Clayton County that LGBTQ+ employees are protected from employment discrimination under Title VII of the Civil Rights Act of 1964. 

Kavanaugh suggested the wide-ranging landscape of laws on the issue throughout the country meant the court should tread carefully in meddling in state laws.

“Given that half the states are allowing transgender girls and women to participate, about half are not, why would we at this point — just the role of this court — jump in and try to constitutionalize a rule for the whole country while there’s still, as you say, uncertainty and debate?” he asked Hartnett.

Meanwhile, the Trump administration has taken steps at the federal level to prohibit trans athletes’ participation in women’s sports teams aligning with their gender identity, including the president signing an executive order in February 2025 that banned such participation. 

He also signed executive orders regarding transgender people including orders that make it the “policy of the United States to recognize two sexes, male and female,” restrict access to gender-affirming care for kids and aim to bar openly transgender service members from the U.S. military.

Wisconsin State Flag | Getty Images Creative

This week marked the fifth anniversary of the Jan. 6 insurrection, in which supporters of President Trump stormed the U.S. Capitol, demanding that then-Vice President Pence overturn the will of the people. Efforts to impose accountability for those responsible and those involved have largely ended — except in Wisconsin. This means that Wisconsin has the opportunity, and the responsibility, to re-assert the rule of law, to ensure justice, and to bolster the foundations on which American democracy has been built over the past 250 years.

As we assess the state of our democracy in light of this somber anniversary, let’s start with the bad news: 

• The U.S. Supreme Court derailed efforts by states to enforce the 14th Amendment’s prohibition against insurrectionists serving in federal office, and then it invented an ahistorical and jaw-droppingly broad doctrine of presidential immunity to derail criminal prosecutions of Trump in state and federal courts alike. 
• Federal prosecutions of the violent mob in the Capitol were upended by Trump’s Department of Justice, and Trump issued sweeping federal pardons to every individual connected with Jan. 6, effectively encouraging them to keep it up. 
• State prosecutions of the fraudulent electors — those who executed an unprecedented effort to overturn the 2020 election by submitting to Congress (and other officials) paperwork that falsely declared Trump to have won seven key states that he in fact lost and thereby laying the groundwork for the Jan. 6 rioters to violently demand Pence validate their efforts — have faltered, often for reasons unrelated to the merits of those actions. 

But here in Wisconsin there are still grounds for hope. Hope that bad actors who deliberately took aim at our democracy will be held accountable. Hope that our institutions will stand up and protect our democracy from further meddling by those most directly responsible. And hope that those institutions will act promptly to prevent further damage. Every Wisconsinite should be watching the following accountability efforts — and urging our elected officials to use their authority to advance the rule of law and protect our democracy. 

First, the Wisconsin Supreme Court will soon determine the appropriate sanction for Michael Gableman’s ethical transgressions as he spearheaded a sham “investigation” of the 2020 election. Gableman, who once served on the Wisconsin Supreme Court, accepted this job despite his own assessment that he did not understand how elections work in Wisconsin. He wasted taxpayer funds, undermined government transparency laws, dealt dishonestly with his clients and the public, lied to and insulted courts, and tried to jail the elected mayors of Green Bay and Madison. In March 2023, Law Forward filed an omnibus ethics grievance, documenting Gableman’s myriad breaches of the ethics rules that bind all Wisconsin attorneys. Last summer, Gableman stipulated that he had no viable defense of his conduct and agreed with the Office of Lawyer Regulation to jointly recommend his law license be suspended for three years. (He is now trying to wriggle out of accountability by serially pushing justice after justice to recuse.) 

Wisconsin precedent is clear that, where a lawyer is charged with multiple ethical breaches, the proper sanction is determined by adding the sanctions for each breach together. The Court should apply established law, which demands revoking Gableman’s law license. Then the Office of Lawyer Regulation and the Court should act on our requests to hold Andrew Hitt (chairman of the Wisconsin fraudulent electors) and Jim Troupis (chief Wisconsin counsel to Trump’s 2020 campaign and ringleader of the fraudulent-elector scheme) accountable as well.

Second, the primary architects of the fraudulent-elector scheme, detailed in records  obtained through Law Forward’s groundbreaking civil suit, are also facing criminal prosecution in Dane County. Attorney General Josh Kaul’s case is narrowly focused only on three lawyers — two who were based here in Wisconsin, and one working for the Trump campaign in DC — who conceived and designed the scheme to overturn Wisconsin’s results and then convinced six other states to follow suit. Troupis, who himself was appointed to the Wisconsin bench by former-Gov. Scott Walker as a reward for his key role in the 2011 partisan gerrymander, has gone to great lengths to slow down this prosecution, which Kaul initiated in June 2024. He filed nine separate motions to dismiss the case. He accused the judge hearing preliminary motions of misconduct and insisted that the entire Dane County bench should be recused. And now he has appealed the denial of his misconduct allegations. This case, since assigned to a different Dane County judge, will proceed, and it is the best hope anywhere in the country to achieve accountability for the fraudulent-elector scheme. 

Third, on behalf of the Wisconsin Democracy Campaign and two individual voters, Law Forward is suing Elon Musk and two advocacy organizations he controls for their brazen scheme of million-dollar giveaways to influence the 2025 Wisconsin Supreme Court election. This case is about ensuring that Wisconsin elections are decided by Wisconsin voters, not by out-of-state efforts to buy the results they want for us. We’re waiting for the trial court to decide preliminary motions, but, with another Wisconsin Supreme Court election imminently approaching, there is urgency to clarify that Wisconsin law forbids the shenanigans we saw last year, which contributed to the most expensive judicial race in American history. 

Beginning in 2011, Wisconsin became the country’s primary testing ground for the most radical anti-democratic ideas. From Act 10 to one of the strictest voter ID laws in the country, from subverting the separation of powers and steamrolling local control over local issues to hobbling the regulatory state and starving our public schools, Wisconsin’s gerrymandered Legislature adopted idea after idea hostile to democracy. With the end of the nation’s most extreme and durable partisan gerrymander in 2023 and a change in the makeup of the state Supreme Court, however, the tide in Wisconsin has ebbed somewhat. 

Now, improbably, Wisconsin is the place that democracy can best hold the line. We can create accountability for those who have abused power, have undermined elections, and have diminished the ideals and institutions of our self-government. That, in conjunction with Law Forward’s broad docket of work to defend free elections and to strengthen our democracy, sustains my hope.