SCOTUS Appears Sympathetic to State Laws Banning Men from Womens’ Sports
The Supreme Court on Tuesday supported state laws banning men who identify as transgender from playing on women’s sports teams.
The high court heard three hours of oral arguments in two different cases involving state laws in West Virginia and Idaho designed to protect girls’ and women’s sports from the incursion of male athletes. The cases, Little versus Hecox And West Virginie v. BPJcould have far-reaching consequences for women’s sports and represent a high point in the cultural and legal battle over fairness and whether or not trans-identified biological males should have access to women’s sports teams.
The conservative majority of 6 votes to 3 should make its decision by the summer. Notably, the Supreme Court issued several rulings last year restricting transgender activists’ agenda, including allowing states to ban gender reassignments for minors and requiring schools to offer parents the opportunity to opt out of LGBTQ+ propaganda in school curricula. The court was also skeptical of Colorado’s so-called “conversion therapy” ban.
The High Court heard for the first time Little versus Hecoxwhich surrounds Idaho’s Women’s Sports Equity Act. The lawsuit was filed in 2020 by transgender athlete Lindsay Hecox, who wanted to join the Boise State University women’s cross country team.
A lower court ultimately blocked the law, which is similar to more than two dozen other laws passed across the United States to protect women’s sports. Idaho has asked the Supreme Court to determine whether or not laws that seek to protect women’s and girls’ sports by limiting participation based on sex violate the equal protection clause of the Fourteenth Amendment.
Hécox request the Supreme Court in September last year to dismiss the case as moot after he voluntarily decided to dismiss the case in a lower court, saying he would agree not to play on women’s sports teams and did not want to attract the attention of a huge Supreme Court case. However, the justices decided in October to hear oral arguments first.
Justice Samuel Alito pierced the pseudo-religion of gender ideology by questioning Hecox’s lawyer, Kathleen Hartnett. He specifically asked if Hartnett could define what it means to be “a boy or a girl or a man or a woman” when it comes to equal protection, to which he received a convoluted response.
“Well, how can you – how can a court determine whether there is sex discrimination without knowing what sex means for equal protection purposes?” » Alito insisted.
Alito later noted that there were “an awful lot of women athletes who are strongly opposed to trans athletes participating in competitions with them.
“What… what do you say about them? Are they… are they fanatics? Are they mistaken in thinking that they are subject to unfair competition?” he asked.
Justice Brett Kavanaugh said women’s sports were “one of the great American success stories of the last 50 years.”
“Some states, the federal government, the NCAA and the Olympic Committee – so these are various groups that are studying this issue – believe that allowing transgender women and girls to participate will undermine or negate this incredible success and create, you know, an injustice because, you said, if there are a large number. Well, for the individual girl who doesn’t make the team or doesn’t get in the medal stand or isn’t part of all leagues, there’s a – there’s an evil there, and I think we can’t sweep that aside,” he said.
Chief Justice John Roberts, in both oral arguments, appeared to weigh the potential consequences of legally creating an exception to the definition of what constitutes a woman for the purpose of playing sports.
“If we adopt this, it should apply at all levels and not just in athletics,” he stressed.
Justice Clarence Thomas asked Idaho Solicitor General Alan Hurst believes the state law applies not only to a man who identifies as transgender, but also to “a man who is not a good athlete, say, a bad tennis player” who is not on the men’s team and wants to try out for the women’s team.
“That’s exactly what concerns us, that their arguments about the need to make exceptions…to an otherwise valid classification for people for whom that classification doesn’t make sense, those arguments are not limited to people who identify as transgender,” Hurst said. “A lot of men might say, ‘I can’t really compete with the women’s basketball team, and therefore I should be able to try out.’
Liberal-leaning Justice Ketanji Brown Jackson, who refused to define what a woman is during his confirmation hearing, repeatedly used the word “cis women,” which is a left-wing term that simply means a regular biological woman.
“When it comes 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 applies differently depending on their gender, correct? » she asked.
“The law segregates differently based on their gender, as Your Honor just said. It does not operate differently based on their transgender identity,” Hurst responded.
Justice Department attorney Hashim Mooppan argued in favor of the state restrictions.
“There is no dispute that states can segregate their sports teams based on sex, in light of the actual biological differences between men and women. States can also apply this valid sex-based rule to biological men who identify as women,” he told the justices.
THE West Virginia v. BPJ The case involves a lawsuit filed by Becky Pepper-Jackson, then an 11-year-old transgender student, and her mother against a 2021 state law banning men from participating in women’s sports, West Virginia’s Save Women’s Sports Act.
A lower court blocked the law pending appeal. West Virginia has asked the high court to determine whether Title IX prevents a state from routinely designating girls’ and boys’ sports teams on the basis of biological sex, and whether the law violates the Equal Protection Clause of the Constitution.
Oral arguments in the case initiated by Justice Thomas asking West Virginia Solicitor General Michael Williams how Title IX “defined the separate sexes, male and female?” Title IX prohibits sex discrimination in any educational program or activity as a condition of receiving federal funding.
“Under Title IX, Your Honor, we would look at the ordinary understanding of sex at the time Title IX was passed, in 1972, and I think that would also be relevant in 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 the West Virginia statute. I think that is also consistent, frankly, with this Court’s own understanding of sex in – in some of his own cases like Frontiero, where he also focused on things like reproductive function,” Williams responded.
“But, with that definition, how do you reconcile that challenge with the existence and continued existence of Title IX?” » Thomas replied.
“I think this challenge fails under Title IX and, in fact, it amounts to a backdoor attack on Title IX in the sense that Title IX itself contemplates sex distinctions, and the express regulations applying specifically to the athletics context expressly contemplate distinctions between the sex of men’s and women’s sports teams,” Williams responded.
Mooppan also argued in favor of the West Virginia law, emphasizing that it does not ban biological males from boys’ teams.
“I think what the other side is trying to make in this case…is that they are excluded. And the problem is they are not excluded from…participation on the boys’ team. They choose not to participate on the boys’ team,” he said.
In both cases, the court’s liberal-leaning justices appeared to want to make the case as narrow as possible and repeatedly questioned how the exceptions would work for men who identify as transgender.
Under questioning by liberal-leaning Justice Elena Kagan, Joshua Block, an attorney at the American Civil Liberties Union defending Pepper-Jackson, said his argument hinged on whether Pepper-Jackson had no competitive advantage because he never reached male puberty.
“But the argument disappears if – if that – if these facts disappear? » » asked Kagan.
“Yes, yes, absolutely, that is, at the beginning of the argument, Justice Kagan, you said this could be resolved based on legal principle or based on the facts. And I really want to argue for a resolution based on the facts because, look, if they are right about the facts, then we should lose,” Block said.
In his rebuttal, Williams ultimately said that political judgment should rest in the hands of the state Legislature as the scientific community continues its debate.
“Ultimately, this Court has recognized the physical differences between men and women. They are enduring. And the inherent differences between men and women are cause for celebration. That’s all West Virginia law does here. It must be respected,” he said.
The cases are Little versus Hecoxn° 24-38, and West Virginia v. BPJNo. 24-43 before the United States Supreme Court.
Katherine Hamilton is a politics reporter for Breitbart News. You can follow her on @thekat_hamilton.
