In a 6-3 decision, the conservative court said that West Virginia and Idaho did not break the law when they passed legislation prohibiting trans athletes from competing against biological women and girls. 

Becky-Pepper Jackson, a transgender 10th grader and track athlete in West Virginia, argued that such regulations are “unreasonable.” 

“We disagree,” Justice Brett Kavanaugh , bringing his perspective as a girls’ to the case. “Separate sports teams for biological males and biological females are reasonable: Given the inherent physical differences between the sexes, allowing only biological females to play on women’s and girls’ teams can reduce the risk of physical injury and ensure fair competition.”

Attorneys who represented Jackson and Boise State University transgender student Lindsay Hecox called the opinion a “heartbreaking ruling” and “deeply harmful.” The decision, however, doesn’t settle an ongoing legal debate over whether Title IX requires that participation in sports be based on biological sex determined at birth. 

“I’m not terribly surprised by the outcome, given the court’s opinions in the last year,” said Jenny Denny, a specializing in education and Title IX compliance. “I think we could read the writing on the wall.”

Last year, the court upheld a Tennessee law prohibiting gender affirming care for minors, and in April, conservatives sided with California parents who argued that districts should alert parents if their child wants to change their gender identity.

But she said the court’s opinion did not redefine Title IX to suit the administration. 

“Using a sports analogy, which is fitting for today, it’s not a slam dunk for the U.S. Department of Education,” she said. “I think we’ll see the Department of Education cherry pick some language from the opinion today, but it still doesn’t give a clear answer.”

The decision doesn’t prevent states like California from maintaining policies that allow trans athletes to compete in line with their gender identity. But it also means the administration will likely continue its to prevent trans-inclusive policies through and threats to strip federal education funds from districts. 

Education Secretary Linda McMahon suggested as much in her comments on the ruling.

“This is a tremendous victory,” she said, “and we look forward to ensuring that every educational institution in America abides by the law of the land.” 

The department’s enforcement actions have been based on an President Donald Trump signed last year, but now officials will likely apply the court’s opinion to any future effort to rewrite the Title IX rule, said Joshua Dunn, executive director of the Institute of American Civics at the University of Tennessee, Knoxville. He frequently writes legal commentary for EdNext. 

He agreed that whether Title IX allows schools to include trans athletes in girls’ sports is still “an open question.”

Beth Parlato, senior legal counsel for the conservative Independent Women’s Law Center, called the opinion a “huge win,” but added, “There’s more work to do.”

Congress, she said, needs to “do its job” and pass legislation that would apply to all states.

In a partial dissent, Justice Sonia Sotomayor, joined by the other two liberals on the court, agreed with Kavanaugh on Title IX. But she said the majority should have sent Jackson’s case back to the lower courts for further “factual findings about the state of the scientific debate” under the equal protection claim. 

“A restrained approach, based on all relevant facts, is particularly necessary when the court is faced with a consequential decision of constitutional dimension,” she wrote.

While Jackson will likely not be able to compete in track this fall, Andrew Ortiz, senior policy attorney at the Transgender Law Center, said Tuesday’s decision won’t have a major impact. because there were already so few trans students participating in sports in the 28 states that tried to ban their participation. In those states, intramural sports and private schools, “could still be options,” he said. While the cases now go back to the lower courts, he expects the states to “pretty quickly” prevail in their efforts to enforce their laws.

‘Back of the pack’

As is often the pattern, the justices released opinions with the most nationwide impact at the end of their term, one in which Trump’s agenda, from immigration reform to voting laws, has . While Hecox and Jackson challenged the laws in their states before Trump took office, the administration took part in the case, arguing that states shouldn’t have to carve out a special exception for transgender athletes even if, as their attorneys argued, their physical advantages have been diminished by puberty blockers or drugs to suppress testosterone.

In fact, several months after the oral arguments, Michael R. Williams, West Virginia’s solicitor general, argued that the opposite is happening. In May, he that Jackson finished fourth in discus and first in shot put in a statewide track and field competition. 

“As a high-school sophomore, B.P.J. is not finishing ‘near the back of the back,’ “ , referencing the from Jackson’s legal team in the case. Jackson “is instead defeating every — or nearly every — female in the state in these events.”

But LGBTQ advocates, like the , argue that because transgender athletes represent such of students participating in sports, it’s misleading to say they are dominating competitions or “stealing” first place medals from women and girls. 

The debate continued at the appeals court level even while the Supreme Court deliberated in the West Virginia and Idaho cases.

In April, the U.S. Court of Appeals for the Eighth Circuit an advocacy group, , in their argument that a Minnesota policy is discriminatory because it allows trans athletes to compete in sports consistent with their gender identity. 

The court said that Trump’s executive order and the administration’s actions against states and districts didn’t settle the legal dispute over the issue. 

“The executive branch’s views on that question may guide its own enforcement approach,” wrote Raymond Gruender, a George W. Bush appointee. “But they cannot independently establish a ‘strong likelihood’ that [the athlete’s] participation violated Title IX or its implementing regulations.”

Among the athletes competing on Team USA this summer, several are still in high school making their mark in sports ranging from gymnastics to skateboarding. Many of these students are first time Olympians, who will be competing while also managing their class work and other academic responsibilities. 

Young stars on Team USA, such as gymnast Hezly Rivera and sprinter Quincy Wilson, are already rising fan-favorites. 

Meet six high schoolers we’re rooting for on Team USA. Let the games begin!

PAIGE HEYN, 16

Skateboarding made its Olympic debut at the and is returning this year in Paris. 

All eyes will be on Tempe, Arizona’s Paige Heyn, one of the fastest rising women in the sport. Heyn is “almost single-handedly responsible for that level of progression in women’s skateboarding,” John Nicholson, Heyn’s coach with USA Skateboarding, said. “It’s funny to be a pioneer at 16. In a matter of six months, she has directly influenced her competition.”

“I don’t really do normal 16-year-old stuff,” Heyn said.

Known as a switch skater, Heyn’s ability to skate with both her left and right foot forward has set her apart as she competes. 

Heyn is a sophomore enrolled in the United States Performance Academy (USPA), an online middle and high school for young elite athletes. Despite constant travel and time zone changes, she prioritizes her academics, according to her USPA learning coach Blair Lunn. 

“She is really enjoying her World History class,” Lunn told ĂÛÌÒÓ°ÊÓ. “She is also learning American Sign Language.” 

CLAIRE WEINSTEIN, 17

Claire Weinstein became one of the youngest swimmers to for the 2021 U.S. Olympic Trials at just 13 years old. Now at 17, she intends to keep making history.

With a lifelong record of straight A’s — which she’s recently demonstrated at the online Laurel Springs School — Weinstein’s teachers and trainers applaud her hard work, talent and focus.

“Claire absorbs information and training like a sponge,” Weinstein’s former full-time coach Carle Fierro told ĂÛÌÒÓ°ÊÓ. “She is efficient in quickly applying corrections to her technique, and is able to make connections in the water a lot of swimmers are unable to do.”

Fierro praised Weinstein for her remarkable sense of humor and hours of free time spent teaching young kids to swim. The teenager has committed to a decorative career as a top swimming recruit in her class at University of California-Berkeley. 

She is interested in either studying law or medicine, Claire’s mother Diane Weinstein told ĂÛÌÒÓ°ÊÓ.

QUINCY WILSON, 16

16-year-old Quincy Wilson a spot on the Team USA relay team, making history as the youngest-ever male U.S. track and field Olympian.

The upcoming junior is also an honor roll student at Bullis School in Potomac, Maryland.

Wilson brings “absolute joy to the classroom through his excitement to learn something new” and a “positive, respectful, inquisitive nature to each subject, enhancing the learning of his classmates,” Bullis Head of Upper School Robert Pollinco said. 

Wilson has received an array of prestigious honors at Bullis, including the Freshman Manuel JosĂ© Baca, Jr. Joy of Living Award — and most recently, the Sophomore Head of Upper School Award earlier this spring. 

When not on the track, Wilson enjoys video games like Fortnite and Call of Duty with his friends. 

Pollinco said Wilson is seen as a “consummate scholar, leader, athlete, artist, explorer and most importantly, true friend at Bullis School.”

ALEX SHACKELL, 17

17-year-old Alex Shackell the first female swimmer from Indiana’s renowned Carmel High School to make a U.S. Olympic team. Shackell recognizes she is a part of not only the standing history of Indiana sports, but the athletic legacy of her high school.

Carmel’s swimming program won its consecutive state championship under coach Chris Plumb’s leadership, who believed Shackell’s best opportunity at becoming an Olympian was if she competed in the 200-meter butterfly — and that’s exactly what happened. 

Shackell is a rising junior at Carmel, but has committed to swimming at University of California-Berkeley, where she will be a conference title contender. There, she will her older brother Aaron Shackell, who’s also competing in his first Olympic games this year.

THOMAS HEILMAN, 17

Earlier this summer, 17-year-old Thomas Heilman the youngest American male swimmer to qualify for an Olympics team since Michael Phelps.

However, Heilman dismisses comparisons to the Olympic champion, who has a total of 28 medals.

“It’s always great to be in the same conversation as [Phelps], but I’m trying not to worry about that too much and trying to take things day by day,” Heilman during a press conference after earning his ticket to Paris.

Heilman, an upcoming senior at Western Albemarle High School in Crozet, Virginia, and of the greatest high school swimming recruits of all time, has committed to the University of Virginia.

HEZLY RIVERA, 16

New Jersey native Hezly Rivera is the youngest person competing on Team USA’s roster.

After moving to Texas in 2021, Rivera began at World Olympics Gymnastics Academy. There, she is coached directly by Valeri and Anna Liukin, the parents of Olympic champion Nastia Liukin. The gym has collectively earned 36 World and Olympic medals, having trained Olympians like Carly Patterson and Gabby Douglas.

While Rivera enjoys baking in her downtime (her favorite creations include red velvet and chocolate cakes), spending time with her dog and laying down to rest and recover from six days of training is just as rewarding. 

Rivera attends Inspire Academy, an online school that allows her the flexibility to focus on training full time.

A federal district court judge in Missouri has blocked implementation of the Biden administration’s new Title IX rule in six additional states — Arkansas, Iowa, Nebraska, North Dakota and South Dakota.

The , ordered late Wednesday, brings to 21 the total number of states where the U.S. Department of Education can’t enforce the rule on Aug. 1.

Judge Rodney W. Sippel, a Clinton nominee, said the plaintiffs have a “fair chance” of demonstrating that the department “exceeded its statutory authority” by using the Supreme Court’s decision in Bostock v. Clayton County to expand Title IX protections to LGBTQ students. 

Ravina Nath, a recent graduate of Gunn High School in Palo Alto, California, originally included Rice University in Houston on her short list of colleges to attend this fall. With an interest in neuroscience, she was drawn to its top-ranked biomedical engineering program. 

That was before Texas became one of to sue the U.S. Department of Education  over its new Title IX rule. The regulation extends protections against discrimination and harassment to LGBTQ students and requires prompt investigations into students’ complaints.

Instead, she’ll attend Barnard College in New York City.

“I need to be in a place where I would feel like my school supported me,” said Nath, who became a in high school. At Rice, some students to how officials handled complaints of sexual misconduct. And she ruled out the University of Georgia, a “potential safety school,” because it to make data on such investigations public. Several of her friends made similar calculations when narrowing down school choices. 

“My friends who are survivors and who are LGBTQ+ students applied to schools on the West Coast or the Northeast,” she said. “I don’t think any of my friends applied to school in .”

With the new rule set to go into effect Aug. 1 — just seven days away — a flurry of lawsuits has once again turned the map of the United States into a familiar patchwork of red and blue.

District courts have blocked the regulation in 15 Republican-led states. In the most recent development, the on Monday asked the U.S. Supreme Court to allow all but related to gender identity issues to go into effect in 10 of those states after two appellate courts denied earlier requests. 

Complicating the legal math further, in an earlier action, a federal judge in Kansas the rule just at serving children of current and future members of the conservative Moms for Liberty and students involved in , another advocacy organization opposed to trans girls competing on teams consistent with their gender identity. Moms for Liberty sees the ruling as an expansion opportunity: On Tuesday, the group tied to Title IX.

With the legal landscape changing daily, some experts think the Education Department should take a step back and delay the rule.

“For schools, universities and students, it’ll calm things down,” said Sandra Hodgin, who runs a Title IX consulting firm in Los Angeles. “What are we talking about, 75% of the country not implementing Title IX and only 25% of the country implementing it?”

A spokesperson said the department has no plans to skirt the Aug. 1 deadline. On Tuesday, it sent schools a list of “” and a on how to draft policies to comply.   

For now, the Supreme Court is considering whether to lift the temporary pause on the rule in the affected states.

The far larger question is what the justices might decide if and when they consider the substance of the rule itself. In addition to expanding protections to LGBTQ students, the new rule largely replaced one issued under former Education Secretary Betsy DeVos. That regulation narrowed the definition of sexual misconduct and required live hearings so male students could face their accusers. 

W. Scott Lewis, managing partner with TNG Consulting, which trains districts across the country on Title IX, has advised red states covered by an injunction, like Wyoming and Idaho, that they’re currently bound by the 2020 regulation.

But that could change quickly. 

“It’s a race to the Supreme Court right now,” he said.

‘Bigger than sports’

Some families with LGBTQ students aren’t waiting for the legal drama to run its course. They’ve already to escape laws that bar trans students from using bathrooms or playing on sports teams consistent with their gender identity. Several have moved to the Denver metro area, where Lewis lives, to attend schools in a state that is not challenging the rule.

“We have more than a handful of students at my kid’s high school who moved here from Wyoming, from Kansas, from Iowa,” he said. 

Most of the controversy surrounding Title IX focuses on trans students’ participation in sports, a part of the rule that the U.S. Department of Education has delayed addressing until after the election. But in Lewis’s estimation, that issue is “bigger than sports.” 

“If I’m in a state that won’t let me compete, I’m probably not in a state that’s very friendly to LGBTQ students on the whole,” he said. “I’m far more likely to just move on.”

In blue states set to implement the new rule, many conservative parents say their children’s rights are also at stake. 

They’re concerned students would be disciplined for not using LGBTQ kids’ preferred pronouns, forced to censor their speech or share bathrooms and locker rooms with trans students.

Hillary Hickland, a mother of four in central Texas, moved her children out of the Belton Independent School District partly because she felt there was too much emphasis on students’ gender identity. Her sixth grade daughter told her that teachers encouraged a friend to identify as a boy and use a boy’s name without the parents’ knowledge. 

“Don’t do it behind the backs of the parents. That’s a huge violation of trust,” she said. As a Republican running for the Texas House, she’s concerned about sexual orientation and gender identity becoming part of Title IX. “We have the federal government dictating what goes on in our local public schools. It really undermines the neighborhood school and that culture that we’re trying to preserve.”

‘Nine months behind’

Lewis predicts the Supreme Court will eventually follow its precedent in , which said that at least in the workplace, LGBTQ employees are protected from discrimination. The Biden administration’s new rule rests on that decision.

, who wrote that majority opinion, “can’t undo Bostock. He said sex means LGBTQ rights,” Lewis said. In red states where the rule is on hold, districts “better be ready to implement very quickly because [they’re] going to be nine months behind everyone else.”

If the court also decides to address sports participation — an expected part of the regulation the administration has yet to issue — Lewis said it’s possible the justices would rule similar to the way they handled , leaving it to the states to determine when trans students can compete on teams consistent with their gender identity. 

He called that a “nightmare scenario” because it would “create a world where athletes could compete in some states but not others.” And at the college, NCAA level, “there will be all sorts of questions that can’t be limited to state borders,” said Joshua Dunn, executive director of the Institute of American Civics at University of Tennessee, Knoxville. “They’ll have to address that, too.”

Dunn also suggested the conservative court might not follow Bostock and could treat LGBTQ issues differently at school than they do in the workplace. He noted cases, like , where the court put limits on students’ First Amendment rights in schools “that it would never allow outside of K-12 education.” 

Overturning ‘Chevron’

Another recent Supreme Court decision, unrelated to education, adds an additional layer of uncertainty to the debate over Title IX’s future — one that could affect both sides. 

In , the court overturned what was known as “Chevron deference,” which gave federal agencies broad authority to interpret ambiguous laws through guidance and regulations. The decision gives federal courts more power to explain the law when it’s unclear, and experts say, should end “.”

The Obama administration first issued a in 2011 stating schools’ obligations to protect students from sexual violence and harassment, which the Trump administration largely reversed in 2020, followed by yet another 180 in the spring by Biden’s education department.

Republicans have Education Secretary Miguel Cardona that they will review the department’s rules since President Joe Biden took office,  including Title IX. GOP leaders call the rule “overreach.” 

The conservative Heritage Foundation’s , largely assumed to be a legislative blueprint for a second Trump term,would remove the terms sexual orientation and gender identity from “every federal rule, agency regulation, contract, grant, regulation and piece of legislation that exists.”

But if Trump tries to reinstate the DeVos rule, Democrats could use Loper Bright to bring the same challenge, Lewis said.

“If you 
 say the department does not have the authority, then the 2020 regulations don’t count either,” he said. “It was exactly the same procedure.” 

A bill filed in the Arkansas Legislature focused on students-athlete’s publicity rights looks like a win-win for all involved on the surface. But student-athlete advocates call foul on it.

by House Speaker Matthew Shepherd of El Dorado and Rep. RJ Hawk (R-Benton) would allow high school athletes who have been admitted to or signed a letter of intent at an Arkansas college “to enter into a contract and receive compensation for the commercial use of the student-athlete’s publicity rights.

The bill, Hawk said, attempts to rein in the “wild, wild West” of NIL — name, image and likeness — in high school sports that would allow student athletes to profit off of their image.

The NCAA began allowing college athletes to use NIL in 2021 to secure endorsements and sponsorships. But high school athletics have been a bit tricky.

The NIL became a focal point after former UCLA basketball star Ed O’Bannon and others sued the NCAA and won. They claimed the NCAA violated United States antitrust laws by not allowing college athletes to receive revenue generated from the use of their images in broadcasts and video games.

From that ruling, high school athletes want a chance to make money off of their images, too, especially as they have gained enormous popularity and thousands of followers on their social media platforms.

“Twenty-two states currently allow high school kids to profit off of NIL, including Tennessee and Louisiana,” Hawk said. “I had some constituents ask about it. We got in a room with the triple A (Arkansas Activities Association), some coaches and the NCAA and started looking at things.”

After filing HB 1649, Hawk and Shepherd filed , calling for a 14-month study on the issue.

The Arkansas Activities Association oversees high school sports. Its handbook states high school athletes may not accept gifts or compensation for “permitting his/her name, picture, or person to be used to advertise, promote or recommend a product, service, commercial venture or political venture.”

The association could not be reached for comment on this story.

‘Unnecessary and unfair’

“This bill [HB1649] is about control,” said Byron Jenkins of Arkansas Athlete Connection, a website that serves as a booking agent for Arkansas athletes. “NIL is about allowing the athlete to profit off of their own image whether they want to sell a T-shirt with their name and image on it, sell an autograph, whatever product they want to sell. That should be allowed.

“This bill [allows] foundations and boosters connected to a school to control the athletes’ deal for money by using their image.”

Jenkins pointed out that a high school musician, for example, can hold concerts, sell recordings and monetize themselves as social media influencers while still in high school. So could student artists and writers. Athletes cannot.

Student athletes “should be able to make money off of their name, image and likeness in high school without having to sign with any college,” Jenkins said. “Owning your own image is a basic human right.”

Jenkins also said that HB 1649 is unfair to students who never receive an offer from an Arkansas university yet receive one from an out-of-state college and sign a letter of intent with that university. That happens frequently, as every college is allowed so many spots to recruit from high schools.

Daniel Greene, an attorney in Syracuse, New York, and sports law professor at SUNY Cortland, agreed with Jenkins. He said the path Arkansas legislators are taking is particularly unique.

“High school NIL has mainly been addressed by the state’s high school athletic associations, but Arkansas seems to be one of the few instances where it may need to be handled by the state legislature,” Greene, an NIL expert, said. “The unique caveat here is that not all high school athletes in Arkansas would be eligible, only those that have been accepted into admission or signed an NLI (letter of intent) or other written agreement to enroll in a university or college with the state of Arkansas.”

This limitation seems “unnecessary and unfair to the other high school athletes in the state that may not be ready or able to commit to a college or even want to go to go to college or pursue athletics at the next level,” Greene said.

“Shouldn’t everyone have the right to exercise their right of publicity? No other state that permits high school NIL has this sort of cutoff, which seems a bit arbitrary,” Greene said.

‘You should be able to sell yourself’

Hawk said that questions like these are why he created a bill allowing for a legislative study on high school students’ publicity rights.

Greene pointed out that HB 1649 also has another questionable issue.

“This amendment would expressly permit a school’s ‘supporting foundations’ to facilitate and negotiate NIL deals,” he said. “This would be very controversial since it would potentially allow for NIL collectives and booster clubs to play a more active role in the NIL landscape, which is something the NCAA has been wary of in recent months. In fact, they recently sent out a memo reminding schools that the NCAA’s current rules prohibit schools from compensating athletes for their NIL, including entities acting on behalf of the institution.”

People watching NIL at a national level, Greene said, “believe this memo was targeted at what was developing at Texas A&M and their 12th Man+ Fund and University of Arkansas with their OneArkansas NIL group.”

Passing this law, Greene said, would put Arkansas law at odds with the NCAA rules if the bill is passed.

“This bill would also permit 501(c)(3) organizations to compensate athletes for the use of their NIL, which has been a controversial topic for some time as the number of charitable NIL collectives has grown,” he said

After House Bill 1469 was filed, Hawk and Shepherd filed House Bill 1679, which allows for a study to examine high school student-athletes’ publicity rights. That bill would also create a program for student athletes about contracts and compensation rather than each athlete cutting their own deals.

The study’s results by the House Committee on Education and the Senate Committee on Education would be filed on or before Oct. 31, 2024.

“We have to ask, do we want kids to go into the court system for a NIL system?” Hawk said. “I think the answer would be no. If the states around us have it, what is to stop their parents from moving to another state so their kids can make money? We would lose top talent.”

Jenkins argued that the talent always belongs to the student athlete. Many high school athletes, he said, already have what is considered as NIL value — production, exposure, influence and relationships.

“Those kids can influence people to buy a hat with their image on it, and that’s their image. They should not be forced to allow a college, boosters or a nonprofit to control it. They should be able to keep their brand going even if it starts in pee wee sports or elementary school. You should be able to sell yourself.”

is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Arkansas Advocate maintains editorial independence. Contact Editor Sonny Albarado for questions: info@arkansasadvocate.com. Follow Arkansas Advocate on and .