We must remain in prayer for these cases: West Virginia v. B.P.J. and Hecox v. Little.
“Sex is what matters in sports,” Idaho Solicitor General Alan Michael Hurst said to start oral arguments today at the United States Supreme Court. These cases challenge whether a state is justified in protecting sex-based classifications in sports. Most reasonable people understand this as obvious, just, and simply necessary to ensure equal opportunity for women and girls.
Even the radically liberal Washington Post Editorial Board said this week that, “Neither science, nor the American public, is on their side.” It argued the Court has a chance to right a historic wrong: “The Supreme Court has the chance this week to save women’s sports, allowing states to restore a level playing field for girls by excluding biological men and thereby correcting one of the worst excesses of America’s cultural revolution.”
Still, the pro-transgender lobby is undeterred. They want to force the overwhelming majority of Americans to ignore biological reality in order to accommodate the feelings of males who feel they are women.
Justice Ketanji Brown Jackson was most passionate at oral arguments on that side. Over and over, she couldn’t understand, as she is prone to do, why a state should not be forced to consider the case of each male who feels they should have the opportunity to compete against females. If they show they are not that good and have suppressed their maleness enough, they should apparently be allowed to compete.
Justice Sonia Sotomayor and Elena Kagan were also sympathetic to the idea, spending most of the time at oral arguments discussing the possibility of an “as applied” challenge that would allow even a single individual to challenge a law if they believe their specific circumstances are different. So, every boy who believes they can’t compete with boys, but they would have an opportunity among the girls because of low testosterone levels, should get a chance to prove that they are not as good as other boys and be allowed to compete among girls.
Not even the attorney for the trans-identifying boy was arguing for such a radical position, which sort of took the air out of their sails, but they still had questions as to why not. Alternatively, they wanted the Court to say the case is moot because the trans-identifying boy has promised not to compete anymore.
There is a legitimate concern that the Court’s tendency to punt on what it perceives as controversial issues might persuade even some members of the more conservative side of the Court to delay weighing in on this important issue, so we must continue to pray.
Thankfully, Justice Samuel Alito tried to put the true issue front and center, despite the Court’s cowardly inclination to hide behind legalese and procedural shell games to avoid controversy. Here is his revealing exchange with Kathleen Roberta Hartnett, representing the trans-identifying athlete (Hecox):
Justice Alito: Let me just go back to some basics. Do you agree that a school may have separate teams for a category of students classified as boys and a category of women classified as girls?
Ms. Hartnett: Yes, your honor.
Justice Alito: If it does that, then, is it not necessary for there to be … an understanding of what it means to be a boy or a girl, or a man or a woman?
Ms. Hartnett: Yes, your honor.
Justice Alito: And what is that definition? … What does it mean to be a boy or a girl or a man or a woman?
Ms. Hartnett: Sorry, I misunderstood your question…
A world-class word salad followed, with the conclusion, “We do not have a definition for the Court.” Finally, Justice Alito asked the obvious: “How can a Court determine whether there is discrimination based on sex without knowing what ‘sex’ means?”
The pro-trans side has no answer to this. As Justice Jackson infamously said at her confirmation hearings, she is not a biologist.
Justice Alito tried again, asking the American Civil Liberties Union (ACLU) attorney, Joshua Block, representing the trans-identifying athlete in the second case, about this obvious problem. But he was even more adamant that the Court should not endeavor to be so daring as to define sex in a law that prohibits discrimination based on sex. There are all kinds of things they would like to include in that definition. Sex means whatever they want it to mean.
Justice Alito: Title IX prohibits discrimination on basis of sex. It is a statutory term. It must mean something. You are arguing that here that there is discrimination on the basis of sex, and how can we decide that question without knowing what sex means in Title IX?
The answer?
ACLU: Well, I think there are a whole range of sex-based characteristics that can give rise to discrimination.
Finally, the Chief Justice tried to shed light on the preposterous nature of it all. He said,
The question then becomes not whether or not there is discrimination on the basis of sex but whether there is discrimination on the basis of whatever characteristic you think should be included in the definition of sex. And when it is used as a statutory term, I’m not sure you have that kind of flexibility. The question then would be, instead, what does Congress think the word means.
Personal preferences are all the ACLU was really arguing. They know the weak rationale behind their arguments, so the plea became a plea for the Court to do as little as possible to allow them to come and argue for more later. He suggested they could keep the definition tied to biological sex for this case, but begged the Court not to do anything else, to allow for more definitions of sex, according to their preferences later.
Their whole argument was preposterous, and still, the truth is we must continue to pray that the Justices keep the plight of women front and center. The reality of the discrimination they feel played a very small role in the Court’s questioning today.
Justice Brett Kavanaugh tried to bring it up a couple of times, as both arguments were winding down, to give the opposing attorneys an opportunity to speak about the zero-sum game aspect of the issue, but it did not receive the sort of serious attention that it needed. And the ACLU’s bottom line was that it was tough luck for women. Many women don’t make the team or the podium for different reasons, and, since in their mind there is no biological advantage for these trans-identifying males, then they should be excluded in the name of inclusion.
Let us pray that the majority of Justices see through the whole charade and give women the resounding victory they deserve.
