There are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them. What do you say about them? Are they bigots? — Justice Samuel Alito
As promised in my Supreme Court Photo Essay with Hats, I read all 263 pages of oral-argument transcripts so I could offer you this non-legal summary of the sports-related Supreme Court hearings from January 13.1
I’m omitting all the confusing parts about legal precedents, strict scrutiny, intermediate scrutiny, as-applied challenges, and sentences like this doozy:
“You make the argument that ‘on the basis of”’ means ‘solely because of,’ solely. We have long said that ‘because of’ means but-for, not ‘solely because of.”2
See? Your savior.
First, a Review of the Basics
Idaho and West Virginia want to exclude males from school and college teams designated for girls and women. This is precisely the beauty of Title IX: Giving girls “a league of their own” by keeping boys out.3
But boys now feel so entitled to join girls’ teams they have literally made a federal case of it. Two. The cases were heard back-to-back so the Justices could consider them collectively, though the rulings, expected in June, may be different.
In the Little v. Hecox case, a Boise State University athlete named Lindsay Hecox claims to have “mitigated” his male performance advantage through hormonal manipulations.
The West Virginia v. B.P.J. case involves a then-11-year-old boy named Becky Pepper-Jackson who was medically prevented from going through puberty and allowed to compete in girls’ track and cross country in middle and high school as the case proceeded through the courts.4 (Five girls who staged a boycott were punished.)
What Did the Boys’ Lawyers Argue?
Surprisingly – and this switcheroo shocked not only me but many lawyers – the boys’ lawyers did not claim discrimination based on transgender status, but…
only a “discrete subgroup: transgender women [sic] who do not have an athletic advantage.” — Kathleen R. Hartnett
Justice Ketanji Brown Jackson tried to make it about trans status anyway.
“The law… 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.”
But the ACLU and other lawyers for the boys no longer see “trans” as a winning strategy, apparently. Instead, they went for mitigation. The word mitigate means “reduce.” The lawyers implied that it means “eliminate”:
“We represent the group of people that do not have an athletic advantage, that have mitigated their male – their biological – advantage of being born male.”
Male advantage comes down to “circulating testosterone,” the boys’ lawyers contended. If you medically suppress testosterone while also administering estrogen, then abracadabra, apparently: You produce boys who are so weak they should now be eligible to play girls’ sports.
“Lindsay Hecox has mitigated that advantage because she [sic] has suppressed her [sic] testosterone for over a year and taken estrogen.”
Fact-check: Are they kidding? There is zero evidence that hormonal manipulation makes men shorter or equivalent to women in terms of speed or strength. Boys are faster and stronger than girls long before puberty, and they retain that advantage no matter what happens before or after puberty.
B.P.J.’s lawyer, Joshua A. Block, claimed that boys who block their puberty even…
“go through a female hormonal puberty… with all the physiological changes accompanying it… [and] will no longer have a competitive advantage.”
Fact check: A thousand Estradiol patches stuck to every inch of a male body would not induce female puberty.
“Wait, what? Why aren’t you mentioning monthly menses, cramps, pregnancy, miscarriage, gestation, birth, or lactation?” asked none of the Justices, but they should have.
“Medical transition does not reliably suppress all male athletic advantages” Alan Hurst, a lawyer for the states, rebutted, citing the case of “CeCe Telfer, an elite track athlete who underwent a medical transition and whose track times did not change.”
Did the Justices See Through the “Mitigate” Haze?
Fortunately, Justice Gorsuch granted that at very least, there’s “scientific uncertainty about whether puberty blockers and testosterone suppressants completely — or mostly — or some percentage of the time — eliminate all… or some competitive advantage. You know, some percentage of advantage remains in each individual case.”
Encouraging Signs
Justice Brett Kavanaugh and Justice Samuel Alito spoke up for girls.
It’s a “zero-sum game for a lot of teams,” said Justice Kavanaugh, who has coached his daughters’ basketball teams. Citing starting lineups, playing time, selections for All-League, and college recruitment, he said, “Those things matter to people big-time. It’s not like, Oh, just add another person to the team. That’s not how sports works. Someone else is going to get disadvantaged.”
Justice Alito, whose daughter swam for Georgetown University, has clearly been listening to women. “There are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them. What do you say about them? Are they bigots? Are they deluded in thinking that they are subjected to unfair competition?”
Here’s to all the female athletes who are bravely speaking up. You are being heard by the highest Court in the land, my friends.
It’s insulting to hear the Supreme Court diss female athletes as essentially equivalent to “not good, untalented, lousy” boys
The Case of the Not Very Good, Untalented, Lousy Boys
Justice Amy Coney Barrett introduced a comparison between the subgroup of “mitigated” males who allegedly have no advantage and “boys who… weren’t good enough… to make the male team but perhaps could make the girls’ team.”
This gave me hope. Maybe she, too, understands how ludicrous it would be to allow any males to become eligible for the female category based on how good they are.
After that, the hypothetical “not good enough” male athlete poked his hypothetical head up repeatedly. With each appearance, his status devolved: from the “not good enough” male to “the untalented cisgender boy” to “the lousy boy.”
It was Justice Clarence Thomas who called him lousy.
“An individual male who is not a good athlete, say, a lousy tennis player, and... wants to try out for the women’s tennis team…. Many males could say, ‘I can’t really compete with the [men’s] basketball team, and therefore I should be able to try out [for the women’s].’”
I hope the absurd example proves persuasive. But it’s insulting to hear the Supreme Court diss female athletes as essentially equivalent to “not good, untalented, lousy” boys. (We can beat those guys. Trust me. Countless lousy guys have challenged me to H.O.R.S.E. and lost.)
During attorney Michael R. Williams’ rebuttal on the B.P.J. case, he employed the hypothetical lousy male to make yet another point. The fact that no rational person would let them play on girls’ teams, he said, proves that this case is not really about mitigation but about transgender status…
because a “cisgender boy who continues to not have those same biological advantages would nevertheless still be kept off… the girls’ sports team.'“
What Will They Rule?
Lawyers I know expect a 6-3 ruling in favor of states’ rights to exclude all boys from girls’ sports. This would be a victory but would not solve the problem. Chaos in interstate competitions would continue, and girls in about half of the states would still have to face boys on the courts and in the locker rooms. (No one mentioned locker rooms. I wish they had. No amount of mitigation gives men a legal right to be voyeurs or exhibitionists.)
The Court might make a broader ruling (not that states can exclude boys if they choose to, but that they must), but that’s less likely. Even less likely: Interpreting the word “sex” in Title IX to mean biological sex, as it was intended.
I’ll give Alan M. Hurst, the lawyer speaking on behalf of Idaho in the Hecox case, the final word.
“Bottom line, sports are assigned by sex because sex is what matters in sports. It’s been widely accepted for many decades because it’s necessary for fair competition because, where sports are concerned, men and women are obviously not the same.”
As always, I welcome your thoughts. You might also like:
The Hecox transcript and B.P.J. transcript: more interesting than you might expect.
For a legal analysis, listen to this recap with attorneys Kara Dansky, Elspeth Cypher, Nancy Hogshead, JD, Oly hosted by DIAGdemocrats and moderated by Lisa Simeone.
Due to lack of federal enforcement, 93 percent of schools and colleges still discriminate against women and girls in sports.
Two of B.P.J.’s middle-school teammates swore under oath that he sexually harassed them with comments including “S*k my d*k.” So much for blocking his male puberty. This did not come up in the Supreme Court, unfortunately.
I think it's encouraging that the pro-trans lawyers are trying this tack of "mitigation"-based exceptions. It's almost as if they have given up on getting the Justices to recognize "transgender status" as a quasi-suspect class building on Bostock. With this argument, they should be guaranteed to lose if the facts and the science are properly considered. Then again, KBJ is not a biologist, and neither are the others, so who knows if they will consider scientific facts!
And if they want to build on Bostock, they can do it like this: No one should be discriminated against based on their "gender identity". Males should be free to play on male sports teams regardless of how they identify.
I do have some hope that our Justices will follow in the footsteps of the UK Supreme Court and rule that sex means sex.
This is really good, Mariah. The amount of critical info that was blithely glossed over as if all this was just an amusing theoretical trifle — aargh, so insulting!