NBC Nightly News with Tom Llamas - Here’s the Scoop: Supreme Court Edition, Ep 2: Who gets to play school sports?

Episode Date: May 16, 2026

We’re back with another episode of “Here’s the Scoop: Supreme Court Edition.” This month, NBC News senior legal correspondent Laura Jarrett is speaking with legal experts and lawyers to discuss the cases being argued this term — and the legal precedents that underpin them. Our second episode is about the transgender student athletes who are challenging laws in West Virginia and Idaho that prevent them from competing on girls’ teams in school sports. The courts of appeals in each district have sided with the student athletes, but Supreme Court watchers agree that the justices are likely to uphold the bans. Former ACLU national legal director David Cole argued Bostock vs. Clayton County (2020), in which a 6-3 majority of justices established transgender people as a protected class under Title VII of the Civil Rights Act, which prohibits employment discrimination. Host Laura Jarrett talks to Cole about his client Aimee Stephens, who was fired from her job after she came out as transgender. He explains how he won over conservative justices on the high court, and why the stakes are different for the transgender athletes in these cases. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

Hey, nightly news listeners, it's Laura Jarrett, senior legal correspondent at NBC News. Drop it in your feed here to share a special new episode from the NBC News podcast. Here's the scoop. This month on the show, we're doing something a little different. It's exciting. It's a four-part Supreme Court edition with new episodes on Saturdays in May. I'm talking to legal experts and the lawyers behind some of the biggest precedent-setting cases of the past that shaping the major decisions still left. to come before the High Court. So if you like what you hear, subscribe to Here's the Scoop wherever you get your podcasts. Dear friends and coworkers, what I must tell you is very difficult for me and is taking all the courage I can muster. I have a gender identity disorder. When Amy Stevens wrote that letter to her colleagues at Harris Funeral Homes in Detroit, back in 2013, she knew her life

was going to change forever. After grappling with her gender identity for years, Amy was announcing that she decided to transition from male to female. Her inner battle over how she'd show herself to the world wait on her heavily. Here's what she told NBC News in 2020. I stood in the backyard with a gun to my chest. But in the hour, I realized I couldn't go through with it.

I was important enough to keep going. What Amy didn't know was that the ripple effect from that letter would eventually lead her all the way to the Supreme Court, serving as a plaintiff in the first transgender rights case ever heard by the High Court. Mr. Chief Justice, and may it please the court, Amy Stevens is a transgender woman. She was a valued employee of Harris funeral homes for six years until she told her boss

that she was going to live and identify as a woman. Amy's case combined with those of two gay men, Gerald Bostock, and Don Zarda, asked what was then a novel question, does the landmark Civil Rights Act of 1964 apply

to LGBTQ Americans? Love is going to save the day for Amy Stevens on today. Love is going to save the day for every LGBTQ person who has ever been persecuted. The Bostock opinion, as their case is now known, continues to be the playbook for many advocates defending the rights of transgender Americans. Now, there's a new battle before the Supreme Court.

This time, it's over sports, and who exactly gets to play on girls' teams? I'm Laura Jarrett, senior legal correspondent at NBC News. Welcome to Here's the Scoop, Supreme Court Edition. I'm spending this month talking to legal experts and attorneys. whose legal wins make up the building blocks of the cases now before the court. Attorneys like David Cole, who defended Amy Stevens before the Supreme Court. The objection to someone for being transgender is the ultimate sex stereotype. Cole was the national legal director for the ACLU from 2016 to 2024.

He's defended free speech across the political spectrum, from arguing on behalf of the gay couple who couldn't get their wedding cake made to defend, the National Rifle Association. And he joins me now. David, thank you for being here. Thanks for having me. You've argued eight cases before the U.S. Supreme Court, not too shabby. You now teach at Georgetown Law.

What do you tell your students is the single most important key to success before the High Court? Well, probably writing excellent briefs more than arguing persuasively live on the day of argument. You know, I think many, many cases are decided before you walk into the court. You know, I think probably most lawyers spend probably more time preparing for oral argument than is warranted, given what people say about how much oral argument matters. But you do. Amy Stevens was fired from her job. After she came out to her colleagues as transgender, she told her colleague she was going to transition

and she was going to present as a woman from then on. Did you think that that was a winnable case when you first heard about it? Yes, but certainly not a certainty. I think we had some very strong arguments for why when one treats someone differently because of their gender identity or because of their sexual orientation, you are also at the same time, by definition, treating them differently because of their sex. And therefore, if you read the statute literally, it should cover discrimination on those bases. However, if you, you know, ask, what did Congress intend when they enacted this statute back in 1964 or 1965?

obviously they did not intend to protect gay people or transgender people at that time. They barely intended to protect women. So you could take different, you could come to different outcomes depending on how you think courts should interpret statutes. Let's back up a little bit because I want to talk about sort of the circumstances leading up to this case coming in front of the high court. So she's fired. what is the reason she is told she's being terminated, David? Because she is transgender, because she, the owner was a very traditional guy, and he said, I think men are men and women are women.

And you can't come in here and dress as a woman and use a woman's name because, in my view, you are a man. Do you think that made it easier in some ways then? Because in all, in so many cases, it's, you know, it's up for a woman. debate about what are the real reason someone's being fired or hired, and so you have to litigate all of that. Here, they're saying right off the bat, we're firing her because she's transgender. No question about that.

And I think that is because it was not widely viewed that that was prohibited. You know, it is widely viewed that you can't fire someone because they're black or because they're a woman. And so you rarely get employers admitting that. You have to try to prove it through circumstantial evidence. But, you know, the state of the law was unclear about whether you could fire someone for being transgender or gay. And so our case, the case involving Amy, the employer was very clear. The companion case, which the ACLU was also counsel in, involved a man named Don Zarda, who was fired from his job because he was gay.

And there too, the employer made no bones about it. Part of the reason employers thought it was unclear is because Title VII lists out all the different groups of protected people, right? So we have race, we have sex, we have national origin. It doesn't say you can't discriminate against someone because they're transgender. That does not appear in the text of Title VII. That's right. So instead, you have to say sex is the key here. Sex is the hook for how we're going to win this case.

Yeah. How hard is that? It really turns on what you think is the appropriate way to interpret a word in a law passed by Congress. And there are some people, many people, who believe that what the court's job is is to do what Congress intended. And if that's what you're arguing, then it's very hard to argue that when the law said you can't discriminate on the basis of sex, what they meant was you can't discriminate on the basis of sex. gender identity, but there's a competing view of how to interpret statutes, and that is you don't try to divine the purpose behind the statute. You just look at the words, and you apply the words. You know, we made an argument that as a logical matter, when you treat someone differently because

they are transgender, and in our companion case, because they are gay, you are also at the same time necessarily treating them differently because of their sex, even accepting that the definition of sex is limited to, you know, biological sex or sex assigned at birth. That's the basis upon which you're treating someone differently when you fire them for being transgender or firing them for being gay. It's worth noting that was not an argument that the Supreme Court had ever had to address before you made that argument. And yet you did it.

How did you decide, okay, this is a Hail Mary. It may not work, but we're still going to try. So, you know, we had prevailed below. So it was the other side that asked the Supreme Court to review the case. Ideally, you have a lot of precedent on your side before you go to the Supreme Court. As the gay rights movement did with respect to marriage equality before they got to the Supreme Court, and they did a lot of dissuading people from going to the Supreme Court too early. But we didn't have that choice because the other side, we won below, and the other side then

gets to make the choice about whether to go to the Supreme Court. So when that happens, do you say, oh, shoot, now we're going to have to do this in front of the Supreme Court? Yeah, well, first you say to the Supreme Court, you shouldn't review this case. Don't take it up. Yeah, but once the court granted the cases and put them together with the Bostock case, At that point, you have to ask yourself, how can we win this case? And, you know, our view was this is the best, the most likely path to victory because

it sort of plays to the conservative mindset about how to interpret statutes. That, you know, that purpose versus literalism debate that I talked about, typically Liberals line up on the purpose side and conservatives line up on the literal textual side. And it wasn't our only argument, but it was our lead argument. Okay, we're going to take a very quick break. And when we come back, how you got the justices on Amy Stevens' side. Mr. Coe, let's not avoid the difficult issue, okay? We'll be right back.

And we're back with Here's the Scoop, Supreme Court. I'm Laura Jarrett speaking to constitutional lawyer David Cole. David, I want to go back to the day of oral arguments in Amy Stevens' case. Outside of court that day, hundreds of people had gathered. They're chanting. They are excited to be there. You had trans activist and actress, LeVern Cox, there from Orange's the New Blacks. He had a celebrity presence outside of court.

You were inside the court doing the hard work, making an argument that, By your own admission, as we've been discussing, Congress probably had not contemplated trans Americans as a class when lawmakers drafted Title VII back in 1964. But you also did sort of what I would call things on more of the optics side, not the actual content of the arguments, but you brought Amy to be visible in the courtroom. Amy wanted to be in the courtroom. Amy was, I mean, this was a very brave person, Amy Stevens. I mean, I was just incredibly privileged to represent her. This is somebody who grew up in rural Michigan, working class, identified as male at birth, married the girl across the street, had a, you know, working class, you know, working class. identified as male at birth, married the girl across the street, had, you know, working class jobs. I mean, she worked in a funeral home for much of her career. And in her 50s, in her 50s, she realizes that, you know, through therapy and the like

that, you know, she is a woman. She is not a man. She is a woman. And went against every stereotype people have about trans folks. She was not flamboyant. She was not young. She was not sort of out in any way. She was a quiet, soft-spoken, dignified person who had nothing to gain except her identity

by, you know, coming out as transgender. And when she did, she was fired from her job. And she, you know, to her credit, she fought that decision all the way up to the Supreme Court. So when it was, you know, to be argued in the Supreme Court, she wanted to be there. She's not somebody who wants limelight by any means. She was not someone who was, you know, eager to be, you know, before the cameras, but this was her fight. And so she was there. She was suffering from kidney disease.

She was on dialysis. She was in a wheelchair, but she was there. She was there. At the time, Justice Ruth Bader Ginsburg was there. Stephen Breyer was there, both still on the bench at the time. So the makeup of the court has more liberals than it does today, but it's still a conservative majority. What was your strategy? So our strategy was really twofold. One was to appeal, to seek to appeal to the conservatives by making this kind of logical argument. When you fire someone because they're transgender, you are necessarily treating. them differently than you would have treated somebody who was in the same situation, but identified as a different sex at birth.

Imagine an employer who had six Amies, and he invited all six Amies in, and he said, you know, I just want to know what your sex assigned at birth was. And five of them say, well, I was assigned female at birth. And one says, I was assigned male at birth. And then he fires the one who says, I was assigned male at birth. Obviously, that person is fired because of her sex assigned at birth. And as we saw from the prior... The second argument, I think, we tried to advance, which ultimately did not prevail,

but I still think is a very powerful argument, is that when you fire somebody who is born male, identified as male at birth, because she is transgender, you are firing that person for failing to live. consistently with the stereotype that we associate with sex. And at the end of the day, the objection to someone for being transgender is the ultimate sex stereotype. It is saying, I object to you because you fail to conform to this stereotype. The stereotype that if you are assigned a male sex at birth, you must live and identify for your entire life as a man. That is a true generalization for most of us, but it is not true for you. But it is not true for 1.5 million transgender Americans.

The court had previously held that when you fire a woman, you know, in a law firm or refuse to promote a woman in a law firm because she's too masculine, she doesn't fit the sex-based stereotype for women. That's sex discrimination violation of Title VII. And in my view, when you fire someone for being transgender, you are doing the same thing. You are firing them, you're treating them differently because they don't fit the stereotype that is associated with their sex assigned at birth. And that argument, it seems to me, is, you know, I think to me, more moving in the sense that it explains why this is problematic.

It's problematic because it's ultimately about reinforcing stereotypes about sexuality. That's kind of the core of sex discrimination. We won ultimately using the logical argument, but, you know, we'll take it either way. One issue that comes up again and again both on the liberal and conservative side is the issue of bathroom access. The justices seem obsessed with what happens in the bathroom. Listen to this exchange with Justice Sotomayor. And they want to use the woman's bathroom. But there are other women who are made uncomfortable and not merely uncomfortable, but who

who would feel intruded upon if someone who still had male characteristics walked into their bathroom. That's why we have different bathrooms. So the hard question is, how do we deal with that? And what in the law will guide judges in balancing those things? That's really what I think the question is about. Well, that is a question. Justice Sotomayor is not the question in this case.

Mr. Cole, that's yes. Because once we decide the case in your favor, then that question is inevitable. What I hear you doing is classic lawyer speak for. I know that's a bad issue for me. I don't want to talk about that issue. I want to talk about my case, which is the easier case. Absolutely.

I mean, you know, that question and various, you know, iterations of it came up at every moot court and came up, as you say, repeatedly at oral argument. Why? Why do you think that is? Well, because that's what people were, you know, the first sort of issue about trans rights that really broke the public attention was bathroom access. A lot of the early cases were about bathrooms. You know, it's an uncomfortable issue for, for many people, particularly older people. And so, you know, our strategy was, look, that may well be a hard question. We don't have to win on that question in order to win this case. And in fact, we're much more likely to win this case if we can convince the court that our winning does not necessarily lead to one

result or the other with respect to bathrooms. And so what I tried to do time and again with respect all the justices, including Justice Sotomayor, was to say, look, the question in our case was whether when you fire someone for being transgender, that is a sex classification, whether that is because of sex, as the term is used in the statute. That's the whole question. When it comes to sex segregated bathrooms, that is not the question. They're obviously segregated because of sex. they have on the label, women's room and men's room. That is obviously a sex classification. The question then is whether that distinction is justified or not,

whereas in our case, the question was before that. The question was, is this sex discrimination at all? Is it because of sex when you treat someone differently because they're transgender? You have bathrooms, you have dress codes, you have sports, and the through line to me seems to be the justice is worried about opening up a can of worms that Congress simply didn't intend. Take a listen to Justice Gorsuch on this. I'm with you on the textual evidence.

It's close, okay? We're not talking about extradectual stuff. We're talking about the text. It's close. A judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision and the population? and the possibility that Congress didn't think about it

and that that is more appropriate a legislative rather than a judicial function. That's it. It's a question of judicial modesty. So, first of all, federal courts of appeals have been recognizing that discrimination against transgender people as sex discrimination for 20 years. There's been no upheaval. As I was saying, there are... In other words, the sky has not fallen.

Exactly. Yeah, I mean, Justice Gorsuch came back and asked that question again. I mean, basically was like, if it's a close call and massive social upheaval would arise if we chose one result, shouldn't we choose the other result? I think there's two answers to that. One is that's not your job. Your job is to interpret the statute as it is written. But the other, and I think that's what Justice Gorsuch thinks he thinks.

But the other answer is to say, no, it won. won't cause social upheaval. And, you know, so I pointed out with their transgender lawyers in the courtroom today. Two of them were at council table with me. They were transgender men. They were following the court's dress code for males, and they were using the men's room. They're doing so didn't somehow bring down the sex-based dress code and the sex-based bathrooms that the court has. They simply slot it in. into that code. And so that, you know, should not, ought not, will not cause major social upheaval.

But Justice Gorsuch ends up being the writer of this opinion that you won. So you got Justice Gorsuch on your side. You also got the Chief Justice, John Roberts, on your side, in addition to all of the liberals. How do you read it, David? Do you skip to the syllabus? Like, what's your strategy for reading? In that moment, you skip to the bottom line. Did we win or did we lose?

That's the first question, right? And then you go back and look at, you know, what was the reasoning, how big is the win, how big is the loss? And you, you know, you can generally get that from the syllabus because you need, in a case like that, you need to be responding very, very quickly to the press about the implications. And then, you know, over the course of the day, you have more time to read the whole thing. But, you know, we ultimately won in the biggest way. in the biggest way possible.

I will say that one of the saddest things about this is that Amy Stevens died just about three weeks before the decision came down. So she went to her grave not knowing whether she won or lost the case, not knowing that she basically won the first transgender rights victory in the history of the Supreme Court. David, you won, but during the arguments, the justice has previewed the next fight to come.

But it will be coming. So a transgender woman is not permitted to compete on a woman's college sports team. Is that discrimination on the basis of sex and violation of Title IX? We're going to take a very quick break. And when we come back, David, I want to hear what you think is going to happen in the upcoming cases involving transgender. athletes. And we're back with Here's the Scoop Supreme Court Edition. I'm your host, Laura Jarrett, and I'm joined by constitutional lawyer, David Cole. So, David, your case is the precedent now for two big cases that were heard together and still left to be decided this summer, Little v.

Hecox and West Virginia versus BPJ. I want to note up front here that the ACLU is involved in those cases, but you are not the lawyer on those cases. And they both involve. And they both involve transgender women challenging separate state bands that require athletes to play on the sports teams that match their sex assigned at birth. Hecox, now in her 20s, wanted to try out for the women's track and cross-country teams at Boise State University. BPJ, still a teenager, wanted to participate in her middle school girls' cross-country team. Both were told no by state officials. You can't play. Both sued saying that their rights are being violated by these state bans. But, David, these plaintiffs are relying on a different law than you did. They're relying

on Title IX, which requires schools to provide equal athletic opportunities to male and female athletes. What difference does it make that these transgender athletes are relying on Title IX and you relied on Title VII? So they were relying on both Title IX and the Constitution, the Equal Protection Clause of the Constitution. So the Constitution uses different words. It says no one should be denied equal protection of the laws. So the question is whether treating people differently because they are transgender is a denial of equal protection under the Constitution. And that could that might or might not have a different answer than whether firing someone because they are transgender is firing them because of their sex. And under Title IX, the language is very similar, but the purpose of Title IX was clearly to sort of advance women's sports.

And so there was an argument that at the end of the day, if allowing trans women to participate in, women's sports would deny women's ability to participate in those sports, that would be contrary to Title IX. When I argued the Bostock case, Amy Stevens's case, we did not want to go anywhere near this issue. Why not? Because, you know, it's an issue on which reasonable people can differ. It's a hard issue. If you view the purpose of sports in school as participation, then, you know, why shouldn't you allow trans women to participate in trans girls to participate on the women's team or the girls' team? If ultimately what it's about is participation, then everyone should be able to participate, and you shouldn't have to deny

your identity in order to participate. However, there's also an argument that sports is about competition and that there are advantages that boys have, particularly after puberty, that girls don't have, and that to allow a trans woman who has gained those advantages to participate on a women's team is unfair and will skew the competition in an unfair way, even if, as was established in Little versus Hecox, the plaintiff has taken puberty blockers and hormones so that she has testosterone levels that are the levels of women, not of men. She has altered, you know, taken away. That's testosterone is really the thing that gives you the advantage. And she has altered her testosterone so that it is no longer, she no longer has a sex-based advantage. But still, people, you know,

believe that ultimately the line between men and women in sports, some people believe, is a fair generalization, and it's fair to enforce that by referring to the sex assigned at birth. And we didn't have to address that question. We certainly didn't have to resolve that question in order to answer the question of whether when you treat someone differently because of their gender identity, you're treating them differently because of their sex. So I just heard a litany of different ways in which your case, I think, is arguably easier than the case for the advocates that are currently arguing in front of the Supreme Court. There's also another wrinkle, David, and it's the state bands themselves. Because the bands don't say trans kids can't play with the girls.

They don't say that at all. They say that you have to play on the teams that correlate with your sex assigned at birth. Does the fact that they don't discriminate textually against transgender athletes make any difference? It may well. I mean, I think that is certainly the argument that the states are making. They're saying we are actually not singling out trans people. What we are doing is defining sports teams by sex, by which we mean sex assigned at birth. That treats all people who sex assigned at birth was male the same, and it treats all people who sex assigned as female the same.

And yes, the women's team is different from the men's team, but that difference is permissible because we've had it for 100 years. But the transgender athlete's response is, yes, but what's the purpose of that sex-based line? It's still a sex-based line. purpose is fairness and competitive fairness. And if I, as a person who was assigned male at birth, but am now a woman, have done everything in my power to eliminate any sex-based advantage that I have, well, then what is the purpose of excluding me from the women's team? I see the purpose of excluding someone who has higher testosterone levels from the women's team, but what's the purpose when I have neutralized those advantages.

And I actually am in the same position as a woman who was assigned female at birth vis-a-vis testosterone, et cetera. That's what makes the case hard. That if you think of it in the broad sense, it makes sense. If you think about it, when it's applied to someone

who has eliminated her sex-based advantages, it doesn't make as much sense. And in fact, the NC2A rule at the time was that, yes, those trans women who had shown that they had eliminated their sex-based advantages could, in fact, participate in women's sports. That changed after Donald Trump came to office, and he's made this one of his principal sort of culture war issues. But for a long time, that was the NCAA rule.

David, you mentioned the president and sort of the environment that we find ourselves in now, and roughly 27 states currently have some version of a ban on trans athletes playing girls' sports. That is a very different environment than it was when you won Bostock back in 2020. What do you think of the social climate that we're in right now and what effect it might have on the justices? I think it's a, you know, it's unfortunate that in many ways the advances that trans folks made, including the Boss Stock decision ignited a backlash.

And it's not uncommon that when a minority group makes gains, makes gains, there is a backlash. I mean, look at what happened after the Civil War. And we enacted the Civil War amendments, the 13th, 14th, and 15th amendments, and ended slavery and provided equal protection to everybody and the right to vote to African Americans. and what did we see? We saw a backlash throughout the South, and it was a long fight. And LGBT folks have seen the same, and right now, trans folks are in the crosshairs. That makes this a much harder issue politically and a much harder issue legally.

Justice Kavanaugh in particular seems focused on the political environment we find ourselves in. Listen to this. In an area of scientific uncertainty where there are strong assertions, of equality interests on both sides. And so it's going to come to this court, and we have to decide for the whole country, constitutionalize this. And I guess given that half the states are allowing it, allowing transgender girls and women to participate, about half or 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 they're still, as you say, uncertainty in debate while there's still strong interests in the other side. And I think one of the themes of your... Why is social upheaval and debate around this issue relevant to the legal interpretation of whether transgender athletes are protected under the law? So that is a great question. And, you know, that's a version of the question we got from Justice Gorsuch. And we, you know, I think you could give Justice Kavillian.

the same answer as justice, as we gave Justice Gorsuch, which is, you know, that is actually not your job. Your job is to interpret the law, not to, you know, sort of engage in some political prognostications about where the country is. I have no doubt that, you know, 20, 30, 40 years from now, people will look back and say, you know, discriminating against someone because of their gender identity, we will look back on that in the same way that we now, reject discrimination against women because they're women, discrimination against black people because they're black. But it doesn't happen overnight.

It happens because of movements, education, people getting used to an idea. Every time a discriminated group seeks to protect equal rights for themselves, they face this kind of backlash, and you just have to keep on fighting. and push it through. David Cole, thank you. Thanks a lot. That's going to do it for this edition of Here's the Scoop, Supreme Court Edition.

Our show was produced by Abigail Brooks and Amanda Llewellyn. Erica Huang, engineered with support from Jessica Fenton. Our video editor is Jacob Condon. Kateri Yon is executive producer of Here's the Scoop. And Shalini Sharma is the senior vice president of content development at NBC News. I'm Laura Jarrett. See you next time.