Oral argument took place on January 13, 2026, in two cases involving state law attempts to protect girls sports – in Idaho and West Virginia. Our Equal Protection Project submitted amicus briefs in support of the girls in both cases. Tim covered the oral argument earlier, but I got a chance to give my hot take with Jesse Kelly on his show.
My segment on the SCOTUS oral argument is below, the full segment in which we also discussed the national guard deployment and other issues is here.
Transcript (auto-generated, may contain transcription errors, lightly edited for transcript clarity)
I’ve added a couple of clips to the transcript.
Kelly (00:00):What’s going on with these cases? Why are there two of them? What’s gonna be the, what might be the outcomes? Give it to us.WAJ (00:07):Well, it’s other worldly. As you indicated, this is involving two law … We’re in another world now, and I’m gonna try to put us into the real world.In this other world, we’re arguing basically about whether girls sports are for girls or are they also for boys who identify as girls. And that’s really what it comes down to. So Idaho and West Virginia passed laws that in a nutshell said, we’re going to protect girls sports. And girls sports are only for biological girls. I don’t know if that’s the term they used, but that’s what they meant. So those laws were challenged and actually put on hold because there were two males, one in each state who identify as female who wanted to participate in female sports. And that’s why we’re in the Supreme Court.And I say it’s otherworldly because this should be the easiest thing in the world. This should be, but it’s not.I don’t know which way it’s going to go. We should come out of this oral argument thinking it’s nine to zero, but I think it’s going to be five to four. I just don’t know which direction. And they were taking this very seriously.It was kind of humorous at one point. I mean, Alito, who’s tied with Thomas for the best Justice on the court asked a question, and we don’t have video, but you know he had an ear-to-ear grin. He asked the attorney for the girls to give him the definition of what it means to be a girl or a boy. And she said, well, we don’t have that definition, which harkened back to Katanji Brown Jackson’s confirmation hearing, where she was asked, give me the definition of a woman. And she said, well, I can’t, ’cause I’m not a biologist.https://twitter.com/catchupbites/status/1980821073685016847Anyway, that’s where we are. Most of the argument today surrounded levels of review. A lot of words like heightened scrutiny and strict scrutiny. So a lot of it was kind of court sort of jargon as to what can we do to review this.But when you get down to it, we are literally in the Supreme Court arguing whether a school district can protect girls’ sports or not.Kelly (02:25):Good freaking grief. Okay, Bill, you said, obviously, and in the world of reality, it’s a fairly simple case, but, but it gets a little bit more convoluted legally. I’m kind of putting words in your mouth, but that’s basically what I heard. What’s the legal argument here? Because for a normal person, this is obviously a no brainer thing. What’s the legal hiccups?WAJ (02:49):Most of the discussion today was whether these laws violate the equal protection clause of the 14th Amendment, whether by denying equal rights, they would say, to people they refer to as trans women or trans girls, whether that violates some protected right.And one of the indications of where we are as a society is words like trans woman, trans girl, as opposed to male who identifies as a woman. was thrown around by just about everybody.Today, in fact, Katanji Brown Jackson threw in the term cisgender. If any of your viewers don’t know what that is, that’s describing people who are what we used to call just normal people, a man who identifies as a man and a woman who identifies as a woman. But they’ve created a whole new term to make it sound like that’s weird and that’s strange. So that term was thrown around.https://twitter.com/ClayTravis/status/2011158761956905196And so the legal claim is that transgender students are a protected class or an identifiable class, which is entitled to equal protection of the laws.And it seems absurd on its face. It shouldn’t hold up because a lot of the dialogue today, a lot of the questions, particularly from the so-called conservative justices, were: are you telling me we can’t have separate boys and girls for sports? And, and no one’s really contending that. What they’re trying to do is say, you are being unfair. Here’s a child, a boy or a a girl, whoever it is, and you’re treating them unfairly. And so there was a very circular argument that yes, we can have girls sports, but you still have to treat these other people, you know, make an exception for them. And that’s what a lot of it was. And that seemed to get some sympathy from Gorsuch and other people.How they’ll rule, I don’t know. But there were questions even from the so-called conservatives about aren’t we being unfair to this group of people?https://twitter.com/LauraPowellEsq/status/2011185070569373861And unfortunately, unfairness is not the normal legal standard. You’ve got to find something more firm.We submitted at the Equal Protection Project that I run, briefs in both cases, both of the cases. And our argument was, wait a second here. You cannot have a term in the law that is completely fluid for any given person. You could identify as a male today, a female tomorrow, the day after that a male again.You can’t have a legal system where everything is fluid and subject to the subjective thoughts of a person. You need something objective. And the only objective definition of sex is biological. And that’s what we are arguing.It didn’t really come up that fluidity notion in the argument today.Hopefully the court will read our brief, but that’s why I’m saying we’re in the nether world where, where nothing is firm, nothing is real. It’s all what you feel and what you think and should have somebody have sympathy for you.Well, what about, and this did come up a little bit, not a lot. What about sympathy for the girls who are in girls’ sports and don’t want to have to compete against males? What about the sympathy for them?https://twitter.com/Rickbarmore/status/2011170436357193971That wasn’t a hot topic today. It did come up.But that’s what’s missing from this whole equation is you have girls getting injured, you have girls getting deprived of awards, you have girls getting deprived of college opportunities because they don’t win awards in their sports. That really didn’t come up a lot today, and that’s the saddest thing about it. Now, it might when they actually write the decisions, but that’s what the argument was today, is this unfair?Kelly (06:32):When do they actually write the decisions, Bill? This process seems to be so slow for those of us, those of us on the outside looking in. When do we get decisions on things like that?WAJ (06:42):This one will probably not be until June. I mean, we’re already in January and it was just argued June is the end of the term. Uh, and we’ve discussed what term means. It just means when they issue, hear their arguments and issue their decisions. And generally speaking, other than emergency matters, the term ends at the end of June. So I think this is one we’ll probably get in June. Uh, you know, there are other ones which might and will be fast tracked, but this one doesn’t seem to be on a fast track.
Or as was explained in simpler times:
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