On Tuesday, the United States Supreme Court heard oral arguments in two highly anticipated cases concerning the legality of laws prohibiting biological men (who think they are women) from participating in actual women’s sports.
Overall, a majority of the Court appears likely to uphold state laws that ban male athletes from participating in women’s sports.
In Little v. Hecox, the lower courts concluded that Idaho violated Hecox’s right to equal protection by basing its determination about who qualifies as “woman or girl” on biology. And in West Virginia v. BPJ, the lower courts asked whether West Virginia may, consistent with the Fourteenth Amendment and Title IX, protect women’s athletics by requiring that participation on female sports teams be limited to biological females.
Front and center in both cases is whether “sex” for legal purposes should be defined by objective biological facts, or a subjective person’s psychological feeling and “sense of self,” regardless of biology.
As you may recall, the Equal Protection Project (EPP) participated as amici in both cases. Our arguments, many of which appeared to arise in the Court’s questions at oral argument, focused on the fact that equal protection jurisprudence has always recognized that classifications must be determinable and anchored in reality rather than fluid and opaque.
Over three hours, the Court’s questions ranged over these and related topics:
Chief Justice Roberts pressed for a concrete definition of “sex,” and whether it means something other than “sex as assigned at birth.”
Justice Thomas asked if any difference existed between what the plaintiffs are seeking and a “lousy” male tennis player who wants to try out for the women’s team.
Similarly, Justice Barrett asked whether a ruling for the male plaintiffs would open the door to “boys who didn’t make the [boys’] team because they are just not good enough” trying to play on the girls’ team instead.
Echoing these concerns, Justice Alito wondered about the female athletes across the country voicing opposition to biological males competing against them. “What do you say about them? Are they bigots?”
And in an exchange set to go down as one of the most devastating single questions ever asked at oral argument, Justice Alito asked simply how the attorneys for the male plaintiffs define the word “sex” for equal protection purposes.
The attorney could not answer the question.
Perhaps surprisingly, Justice Kavanaugh appeared more reluctant to draw a bright line based on biology, noting that “half the states are allowing it, allowing transgender girls and women to participate, [and] about half are not.” Therefore, “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 there’s still, as you say, uncertainty and debate?”
Playing on conservative justices’ sympathies, the attorneys for the government hammered at perceived weak points in the other side’s arguments.
Idaho Solicitor General Alan Hurst declared: “Bottom line: Sports are assigned by sex, because sex is what matters in sports.”
Principal Deputy Solicitor General Hashim Mooppan followed up with: “Denying a special accommodation to trans-identifying individuals does not discriminate on the basis of sex or gender identity or deny equal protection. All of that remains true even assuming a man could take drugs that eliminate his sex-based physiological advantages.”
For their part, the attorneys for the plaintiffs and liberal justices focused on the questions of whether and to what degree the laws in question use sex categories, potentially triggering heightened constitutional scrutiny, and whether transgender students can mitigate any unfair athletic advantage after undergoing hormone treatments.
The Court’s decision, which will be released early this summer, will have a historic and nationwide impact, especially on the twenty-five other states with similar laws.
Reminder: we are a small organization going up against powerful and wealthy government and private institutions devoted to DEI discrimination. Donations are greatly needed and appreciated.
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Timothy R. Snowball is a Senior Attorney at the Equal Protection Project.
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