Two cases came before the Supreme Court for oral arguments asking the same basic question. Can states prohibit men from participating in women’s sports?
The Questions Presented
Covering two cases at once can get a little confusing. However, the questions are so similar I didn’t think it made sense to review them separately. These cases involve laws in the States of Idaho and West Virginia that prohibit male students from participating in female sports. Let’s start with the questions posed in these cases. First up, the Idaho case Little v. Hecox.
The question presented is:
Whether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the Equal Protection Clause of the Fourteenth Amendment.
Little v. Hecox – Petition for Certiorari
Sweet, simple, and to the point. The West Virginia v. B.P.J. case presented more detailed questions.
The questions presented are:
1. Whether Title IX prevents a state from consistently designating girls’ and boys’ sports teams based on biological sex determined at birth.
2. Whether the Equal Protection Clause prevents a state from offering separate boys’ and girls’ sports teams based on biological sex determined at birth.
West Virginia v. B.P.J. – Petition for Certiorari
The opening arguments were also very similar. Starting with Alan M. Hurst, Solicitor General for Idaho.
MR. HURST: Thank you, Mr. Chief Justice, and may it please the Court:
Idaho’s law classifies on the basis of sex because sex is what matters in sports. It correlates strongly with countless athletic advantages, like size, muscle mass, bone mass, and heart and lung capacity. Tragically but not surprisingly, male athletes have even injured female athletes in many sports. If women don’t have their own competitions, they won’t be able to compete.
Gender identity does not matter in sports, and that’s why Idaho’s law does not classify on the basis of gender identity. It treats all males equally and all females equally regardless of identity, and its purpose is exactly what the legislature said, preserving women’s equal opportunity.
Little v. Hecox – Oral Arguments
Next we have Michael R. Williams, Solicitor General for West Virginia.
MR. WILLIAMS: Mr. Chief Justice, and may it please the Court:
States have long assigned students to sports teams by sex. West Virginia is no different. Maintaining separate boys’ and girls’ sports teams ensures that girls can safely and fairly compete in school sports.
The question today is whether this enduring structure can — can continue. It can. Title IX permits sex-separated teams. It does so because biological sex matters in athletics in ways both obvious and undeniable. The text, history, context, and structure of the statute, alongside regulations expressly authorizing what West Virginia has done, confirm as much.
West Virginia v. B. P. J. – Oral Arguments
On the other side, we have the two respondents, starting with Kathleen R. Hartnett on behalf of the Idaho respondents.
MS. HARTNETT: Mr. Chief Justice, and may it please the Court:
Idaho concedes that H.B. 500 draws a sex-based line by categorically excluding all students with a biological sex of male from women’s teams. Sex classifications like that are closely scrutinized under the Equal Protection Clause to ensure they rest on evidence, not supposition.
Idaho’s articulated justification for this line is to protect women’s sports from birth sex males because of their “biological advantages.” That means H.B. 500 is aimed at controlling for sex-based biological advantages, not for all the many reasons one athlete may be better than another that have nothing to do with sex.
Little v. Hecox – Oral Arguments
Lastly we hear the arguments of Joshua A. Block on behalf of the West Virginia respondents.
MR. BLOCK: Mr. Chief Justice, and may it please the Court:
B.P.J. signed up for school sports because she was an 11-year-old girl starting a new middle school who wanted to meet people, make new friends, and be part of a team. West Virginia argues that to protect these opportunities for cisgender girls, it has to deny them to B.P.J.
But 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.
West Virginia v. B. P. J. – Oral Arguments
Both sides have made claims in their petitions and opening arguments. Let’s see how they hold up during questioning.
Equal Protection
We start with the question of equal protection. One question that came up was whether or not the differences between male and female athletes was simply a question of hormones and puberty?
JUSTICE KAGAN: I mean, one thing that this case could be about is — and this case, I mean generally this litigation — is whether the plaintiffs are right here that there is a mismatch, right, you know, and — and — and some of your briefing addresses that question, right?
You can take all the hormones in the world, you can take all the puberty blockers in the world, you say, and there still will be a competitive advantage. That’s one thing that this litigation could be about and one way to resolve this litigation.
Little v. Hecox – Oral Arguments
But is puberty, and the hormones that come with it, the only differentiator between the ability of male and female bodies? It was rather difficult to find sports records for prepubescent children that had verifiable data. What I can say is that, even as early as Middle School, the record for boys in track and field are significantly quicker than for girls. In the 100-Meter Dash, the record for middle school boys is 11.58 seconds while the record for middle school girls is 13.00 seconds. However, those records do not include the age of the child, so I’m not sure if those records were set pre or post puberty.
Justice Kavanaugh asks about the states that allow males to play female sports.
JUSTICE KAVANAUGH: How many states allow biological males who identify as females, transgender, women and girls, to play in women’s and girls’ sports?
MR. HURST: Statutorily, I’m aware of 27 states that take our side and do not permit that and 23 states that take the other side and do permit it.
JUSTICE KAVANAUGH: And those states who do allow it, are they — is your position that they are violating the Constitution, the Equal Protection Clause rights of biological girls and women by allowing that, or do you say that’s up to each state to decide and that the Constitution gives discretion to the state whether to allow it or not to allow it?
MR. HURST: I have not yet been persuaded by a constitutional theory that would let us use the Equal Protection Clause to impose our policy on other states in this matter.
JUSTICE KAVANAUGH: Okay.
Little v. Hecox – Oral Arguments
Justice Kavanaugh wasn’t asking whether other states should adopt Idaho’s position. Remember, the question before the court is not should males be allowed to participate in female sports, but do states violate the law when they prohibit them from doing so.
JUSTICE BARRETT: And remind me whether Idaho’s law — and I guess this — this — your — your answer made me think of this, and I guess this goes to the question of whether the law discriminates on the basis of trans status.
Is it true that biological girls, trans boys, can play on boys’ teams?
MR. HURST: Anyone can play on boys’ teams, Your Honor.
Little v. Hecox – Oral Arguments
So Idaho’s law does not discriminate based on transgender status. Both Idaho and West Virginia’s laws do differentiate based on sex, something required by Title IX. Nothing in the law of either state prohibits a person from participating in sports, only preventing males from participating in female sports. This confused Justice Jackson.
JUSTICE JACKSON: I — I — I understand that. And there are — there are legal arguments.
Let me ask you something about the classification. I guess I’m struggling to understand how you can say that this law doesn’t classify on the basis of transgender status. The law expressly aims to ensure that transgender women can’t play on women’s sports teams. So why is that not a classification on the basis of transgender status?
MR. HURST: I’d apply Skrmetti again. The question is whether the application of law turns on transgender status. And it doesn’t. It — it turns on sex. The legislature did not want to exclude transgender people from sports. It wanted to keep women’s sports women-only and exclude males from women’s sports.
Little v. Hecox – Oral Arguments
Apparently Justice Jackson believes that if someone calls themselves a woman they really are a woman, biology be damned. Because even after Mr. Hurst pointed out that the classification is based on sex, not “transgender status,” she was still confused.
JUSTICE JACKSON: No, I understand, but with respect to two individuals, a cis woman and a trans woman, who both want to play on a team that reflects their gender identity, this law operates differently based on their sex, right?
MR. HURST: The law does separate differently based on their sex, as Your Honor just said. It does not operate differently based on their transgender identity.
JUSTICE JACKSON: But it treats transgender women different than tran — than — than cis women, doesn’t it?
MR. HURST: It — it has a disparate impact because men who identify as — as transgender have a different reason for wanting to play women’s sports than — than women — you know, than biological females do, right? But, if that were enough, then Skrmetti would have come out a different way, Geduldig would have come out a different way, other cases would have gone a different way. I’m blanking on the other ones.
Little v. Hecox – Oral Arguments
In other words Justice Jackson, the sex of a “transgender woman” is still male. Justice Jackson asked Mr. Mooppan, amici for the United States, about possible exceptions to Idaho’s law.
JUSTICE JACKSON: I guess I’m still struggling to understand why the state would have to have perfectly tailored laws. I would think the state would just have to make exceptions where people can demonstrate that the justification that makes the state’s conduct constitutional doesn’t apply to them.
Little v. Hecox – Oral Arguments
I wonder how Justice Jackson thinks that someone could demonstrate to the state that their male child is not physically advantaged by their maleness? Should they go through a drug test to determine the amount of testosterone in their body? And just how often would they have to do that? Is the fact that their performance in a particular sport enough to allow them to take away opportunities for female athletes? After all, isn’t that why Congress passed the sex discrimination clause in Title IX in the first place, to prevent mediocre male athletes from dominating female athletes? Should mediocre boys and men be allowed to dominate girls and women’s sports, as we’ve seen done time and time again, just so some minority of people confused about their sex can feel better?
What Does “Sex” Mean?
And since we’re talking about sex, what does that word actually mean?
JUSTICE ALITO: Under Title IX, what does the term “sex” mean?
MR. MOOPPAN: We think it’s properly interpreted pursuant to its ordinary traditional definition of biological sex and I think probably, given the time it was enacted, reproductive biology is probably the best way of understanding that.
Little v. Hecox – Oral Arguments
Sex has a very simple definition.
either of the two major forms of individuals that occur in many species and that are distinguished respectively as female or male especially on the basis of their reproductive organs and structures
Sex – Merriam-Webster Dictionary Online
I would go one step further, because reproductive organs are a sign of your sex, but it is actually determined, at conception, by your DNA.
Justice Alito went further in his questioning of the attorney for the Idaho respondents.
JUSTICE ALITO: All right. Suppose this school that has a boys’, let’s say, track team and a girls’ track team. The school has that. And a student who has the genes and the reproductive system of a male and had those at birth and has never taken puberty blockers, never taken female hormones, never had any gender-altering or affirming surgery, says, nevertheless, I am a woman. That’s who I am.
Can the school say no, you cannot participate on the girls’ team?
MS. HARTNETT: Sorry. So your hypo — just a birth-sex male who has all the —
JUSTICE ALITO: Right. Exactly.
MS. HARTNETT: — advantages a birth-sex male, hormones?
JUSTICE ALITO: Yes. Yes.
MS. HARTNETT: And can the school bar him from the women’s team?
JUSTICE ALITO: Yes, yes.
MS. HARTNETT: Yes, they can.
JUSTICE ALITO: But that person — is that person not a woman in your understanding? If the person says, I sincerely believe I am woman, I am, in fact, a woman —
MS. HARTNETT: I think we —
JUSTICE ALITO: — is that person not a woman?
MS. HARTNETT: I — I would respect their self-identity in addressing the person, but in terms of the statute, I think the question is, does that person have a sex-based biological advantage that’s going to make it unfair for that person to be part of the women’s team. And that — that’s the rationale for the regulation, and so that’s the reason — that’s the way we would be testing that hypothetical.
Little v. Hecox – Oral Arguments
Isn’t it amazing how convoluted we can make things in an attempt to get our way? Can a school bar a boy from the girl’s sports team? Terms like “birth-sex male,” “trans-female,” and “cisgender” are nothing but an attempt to confuse the simple fact of sex in an attempt to allow boys to play on the girls team. Even Ms. Hartnett recognizes that the rationale for the law is the sex-based biological advantages males have over females.
Justice Sotomayor went even further. In questioning the attorney for West Virginia, she proposed this, I hope, hypothetical:
JUSTICE SOTOMAYOR: All right, embrace it. All the scientific evidence showed that there’s no difference between cisgender girls and trans girls. I know there’s a fight about that.
MR. WILLIAMS: It — it hurts, but yeah.
(Laughter.)
JUSTICE SOTOMAYOR: I know it hurts, but assume it.
West Virginia v. B. P. J. – Oral Arguments
Except there can be no legitimate scientific evidence that “there’s no difference between cisgender girls and trans girls.” Genetic and biological differences are a fact. People can try to hide that fact, even mutilate their bodies to impersonate the opposite sex, but the statement is not just ludicrous, but offensive to reality.
Title IX
While some of the questioning focused on the Equal Protection Clause of the Fourteenth Amendment, others focus on Title IX.
JUSTICE JACKSON: But the law — but the law actually operates differently, I think, for cisgender women and transgender women. That is, with respect to their desire to play on a team that matches their gender identity, cisgender women can do it, transgender women cannot.
And so we do appreciate a distinction, I think, that is being drawn on the basis of your gender status, gender identity status, trans or cis, right?
MR. WILLIAMS: So — and I want to make sure I understand —
JUSTICE JACKSON: Yes.
MR. WILLIAMS: — if we’re operating in Title IX world or equal protection world because I think it might make a difference to the answer, but —
JUSTICE JACKSON: Okay. Title — let’s start with Title IX then.
MR. WILLIAMS: So — so Title IX, I think the question of — I look at this statute and see a distinction between boy and girl indifferent to gender identity. And I think that —
JUSTICE JACKSON: Right, but I’m testing that proposition, right?
MR. WILLIAMS: Right.
West Virginia v. B. P. J. – Oral Arguments
In other words, Justice Jackson is testing the language of Title IX, most likely to find a way around its simple language.
a) Prohibition against discrimination; exceptions
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,
20 USC §1681
Justice Thomas asked the attorney for West Virginia the same question, a bit more directly.
JUSTICE THOMAS: What’s your view of what Title IX — how it defined the separated sexes, male and female?
MR. WILLIAMS: So, under Title IX, Your Honor, we would look to the ordinary understanding of sex at the time that Title IX was passed, 1972, and I think also relevant would be 1974, when the Javits Amendment was passed. And at that time, the ordinary understanding of sex was biological sex, consistent with the understanding of sex reflected in West Virginia’s statute.
I think that’s also consistent, frankly, with this Court’s own understanding of sex in — in some of its own cases like Frontiero, where it likewise focused on things like reproductive function.
Little v. Hecox – Oral Arguments
Remember, Title IX does not prohibit discrimination based on gender, or even gender identity, only sex, which I’ve already defined. Recognizing this, Justice Alito asked a very pertinent question.
JUSTICE ALITO: Title IX prohibits discrimination on the basis of sex. It’s a statutory term. It must mean something. You’re arguing that, here, there’s discrimination on the basis of sex.
And how can we decide that question without knowing what sex means in Title IX? I mean, it could mean biological sex. It could mean gender identity. It could mean whatever a state wants to define it to mean, but it has to mean something.
How can we decide that without knowing what the statutory term means?
MR. BLOCK: Well, I — I think there are a whole range of sex-based characteristics that can give rise to discrimination. I think, if someone said I’m going to discriminate against anyone who acts in a feminine manner, like anyone with limp wrists, I don’t care who they are, but I’m going to discriminate against them, like, I think that would be sex discrimination. It would be sort of gender presentation. I would — but I wouldn’t say that’s not covered by Title IX.
West Virginia v. B. P. J. – Oral Arguments
Again, Mr. Block represents the West Virginia respondents, those trying to get boys on girls teams. Notice how he dodges the question, ignoring the West Virginia law’s focus on sports, and instead claiming how a person’s mannerism is equivalent to sex.
Threats to Women’s Sports
The idea behind both the Idaho and West Virginia law, not to mention Title IX, is to protect women’s sports. To have a program where women can fairly compete against other women, without having to compete against men. The attorney for Idaho made this point in his rebuttal argument.
MR. HURST: Thank you, Mr. Chief Justice. A few points.
I heard just a moment ago that there is no real threat to women’s sports. We strenuously disagree. We cite the Court — we cite Your Honors to the U.N. Special Rapporteur’s report that says 600 women have lost 890 medals in 29 different sports. That’s what we’re talking about. It is a real threat.
Medical transition does not reliably suppress all male athletic advantages. I’d cite Your Honors to our record in which our expert, Dr. Brown, shows the experience of one CeCe Telfer, an elite track athlete who — who underwent a medical transition and whose track times did not change. That is the story in many situations. And unless we can reliably distinguish between those situations and the situations in which testosterone suppression does reliably eliminate the advantage, then we can’t do that. We need a broader classification, and sex is the right one.
Little v. Hecox – Oral Arguments
Six hundred women have lost 890 medals to men in 29 different women’s sports. These are not just trophies, but opportunities for scholarships, recognition, and in some cases, a chance at a professional career. The only way someone can claim that allowing men in women’s sports does not harm women is if they believe the lie that sex is mental not biological.
Conclusion
As always, it is risky to prognosticate about how a court will decide. There are those court watchers who seem to think the majority of the justices agreed with the States of Idaho and West Virginia. We’ll have to wait to find out.
I can best explain my conclusions from these cases by answering a question Justice Kavanaugh asked the attorney for West Virginia.
JUSTICE KAVANAUGH: There are, as we discussed, a bunch of states that allow biological males who identify as female, transgender women and girls, to play women and girls’ sports. We were talking about that with the Solicitor General earlier.
On your theory of Title IX, Title IX —
MR. WILLIAMS: Right.
JUSTICE KAVANAUGH: — are those states violating Title IX rights of the biological females?
West Virginia v. B. P. J. – Oral Arguments
My answer is a simple “yes.” By allowing males to participate in female sports the states mentioned are discriminating against them based on sex. The problem with the claims against Idaho and West Virginia is they are discriminating against the idea that a so-called “transgender woman” is actually female.
My wife bought me a t-shirt that read, “Your inability to grasp science is not an argument against it.” I could not agree more.
