In June 2025, the Supreme Court upheld the Tennessee ban on a party-line vote. The majority opinion, written by Chief Justice John Roberts, skirted the question as to whether transgender people warrant heightened scrutiny under the Equal Protection Clause by concluding that the law didn’t turn on transgender status at all, but on age and medical use of the treatment.
Yet in a concurrence, Barrett provided her answer anyway, sidestepping the Fourteenth Amendment’s requirements by embracing ignorance about the history of government-approved discrimination against transgender people. “The evidence that is before this Court is sparse but suggestive of relatively little de jure discrimination,” she said in an opinion joined by Justice Clarence Thomas. “Absent a demonstrated history of de jure discrimination,” she said, she “would not recognize a new suspect class” in future cases.
A group of experts on the history of LGBTQ rights are now trying to take that excuse away. On Tuesday, the Court will hear oral argument in West Virginia v. BPJ and Little v. Hecox, two cases challenging state laws that ban trans women and girls from playing school sports on teams that match their gender identity. Ten scholars filed an amicus brief in the cases that reveals the bans as a new chapter in an old story of government attacks on the rights of trans people.
“Transgender people have been subject to criminal prosecutions, forced institutionalization, and high-risk incarceration for nearly two centuries,” they write. For example, beginning in the 1800s, laws across the country made it a crime to wear gender non-conforming clothes. Oftentimes, law enforcement made trans people strip and subjected them to physical examinations to “prove” they were “cross-dressing.” Prosecutions under such laws continued well into the 20th century.
States also targeted trans people under “public decency” laws, which provided police with broad discretion to arrest “people who violated gender norms.” And routinely, police profiled and arrested trans people under suspicion of prostitution. One woman quoted in the brief recounted that, in 2008, police officers grabbed and handcuffed her while she was buying tacos. “They found condoms in my bra and said I was doing sex work,” she said. The brief notes that “the frequency of such police encounters has led to the transgender community naming the phenomenon ‘walking while trans.’”