The Supreme Court today gave itself a historic and difficult assignment: to decide whether the Constitution’s guarantee of equality provides any protection for transgender people.  It ordered review of that issue in the emotionally-charged controversy over banning transgender women from competing in women’s sports.

Separately, the Court agreed to decide whether a 1972 civil rights law assuring equality in school and college programs applies to transgender people.  Two cases, from Idaho and West Virginia, will be heard and decided in the Court’s next term, which opens October 6.

A transgender person is one who is assigned male or female sex or gender at birth, but develops an identity of the opposite sex or gender while growing up.  It can become a medical problem for some who have difficulty transitioning, but the condition can be treated.  Medical science has also developed surgical procedures for changing one’s sex or gender.

For years, the controversy over transgender people involved access to bathrooms or other intimate facilities.  Lower courts reached mixed results, but the Supreme Court at least twice in recent years has declined to hear any appeals on that version of the issue.

The controversy now at the center of the two new cases grows out of legislatures’ view that transgender women who were born male almost always have greater strength and endurance than women born female, so transgender athletes have a distinct advantage on playing fields or courts for women’s competition.  Fully half of the states – 25 – have passed laws banning transgender women from all-women sports.

While the cases before the Court involve schools and colleges, professional sports teams are having their own similar controversies.  Those are private activities, so the Constitution does not apply, and it is unclear how civil rights laws apply – if at all – to sports at that level.  Gays and lesbians often appear in pro sports, and those may be open to some transgender individuals.

The issues before the Court involves the 14^th Amendment and its promise of legal equality, and that applies to governments at all levels, including publicly-operated schools and colleges.  The 1972 federal law that is involved – Title IX — seeks to assure equality in access to education, including sporting competition, at any school or college that receives federal funds.  Title IX has played a historic role in promoting women in school and college sports.

It may be difficult for transgender women to win equality under either the Constitution or the 1972 law: three of the nine Justices have recently indicated, in another transgender rights case, that the Constitution provides no protection for transgender people.  It would take only two more Justices to make that the law.  Congress and state legislatures do have the authority to pass protective laws for transgender people, but the issue is rigorously debated in the nation’s politics, especially about youngsters.

Five years ago, the Court did rule that another part of civil rights law – Title VII, passed in 1964 – does assure equality in the workplace against discrimination against transgender workers.  It is unclear, at this point, whether there are five votes to extend that precedent to Title IX, at the center of the new cases.

The Court announced its plan to take on the new dispute on Thursday, even though it is technically in its summer recess.  But the two cases involved have been held on the docket awaiting the outcome of another transgender dispute.  Decided last month, that case involved medical treatment of transgender children under age 18 who are experiencing difficulty transitioning to a gender identity different from that assigned at birth.  The Court applied the least-demanding standard to a state law that banned that treatment, and upheld it.  The majority said it was not then deciding whether the Constitution did apply to transgender people, but reaching that is what it promised today to do.

Now, the Court will seek to answer these questions:

• Does a law that applies to sex or gender include transgender identity?
• Does it do so in the Constitution and does it do so in Title IX?
• If it is included in either, is that status entitled to legal equality?

In the Idaho case, Little v. Hecox, state officials are seeking to defend a 2020 state law that was temporarily blocked by a lower court under the Constitution.  The other case, West Virginia v. B.P.J., is an appeal by state officials affer a federal appeals court partially struck down a 2021 state law under Title IX.  Both laws sought to impose flat bans on transgender girls or women taking part in women-only sports at public schools or colleges.

So far, in its history, the Court has given guarantees of equality under the Constitution only on the basis of race, family ancestry, or country of origin.  Beginning in 1971, it gave women a measure of constitutional equality, but less than in the other categories. It has been giving some uncertain measure of protection for gays and lesbians, most importantly, the equal right to marry.

The Court has never ruled that the Constitution shields people based on disability, old age or poverty, but has suggested that there may be some government actions that are so blatantly discriminatory against people based on those characteristics that some protection may exist.

Three amendments to the Constitution assured equality in voting (the 15^th Amendment, for racial minorities, the 19^th for women, and the 26^th for 18, 19 and 20 year olds).  The 23^rd Amendment gave residents of Washington, D.C., a right to vote in presidential elections.

What might be considered a new civil rights revolution, for transgender people, has been bidding for years for its place in American society.

The following history of the transgender rights movement is repeated from an earlier report:

The notion of transgender identity, as a scientific or medical theory, goes back to the work of a German scientist, Magnus Hirschfeld, in the early 20^th Century.  He contended that “transvestites,” as he called them, had distinctive sex characteristics and erotic desires that society should recognize.  In 1931, he arranged for the first male-to-female genital transformation for a person named Dora Richter.

Although the transgender phenomenon was largely ignored by the general public, here and abroad, it emerged in a burst of publicity in 1952 with the sexual reassignment surgery of Christine Jorgensen in Copenhagen.  Jorgensen became a celebrity, the man who had become, in headlines, the “Blond Bombshell.”

After a period in America of police harassment of transgender people, as happened, too, to gays and lesbians, a movement to establish legal rights began developing in the 1950s, and spread significantly in the 1960s and 1970s.  Medical science began paying greater attention, ultimately developing the ailment of gender “dysphoria” and creating treatment regimens for that and for what doctors called “gender identity” and “gender incongruence” syndromes.