THE CONTEXT PRECEDING THE ORAL ARGUMENTS HEARD BY SCOTUS ON JANUARY 13TH

And now onto our main discussion, regarding the oral arguments presented at the US Supreme Court on the 13th of January; and we ought to begin with establishing the context preceding the oral arguments heard the US Supreme Court; and as alluded to at the start of our discussion today, the US Supreme Court heard over three hours of oral arguments in two landmark cases challenging state laws in Idaho and West Virginia that ban transgender girls and women (who are biological males) from participating in biological girls’ and women’s sports teams at public schools and colleges. These Republican-backed laws designate athletic teams based on biological sex at birth, thus prohibiting transgender athletes assigned male at birth from competing on teams aligning with their gender identity.

Additionally, the two landmark cases in question which informed the contested state law are Little v Hecox (which was litigated in Idaho) and West Virginia v B.P.J. The cases stemmed from challenges by transgender athletes Lindsay Hecox, a Boise State University student who sought to join women’s track and cross-country teams, and Becky Pepper-Jackson (or B.P.J.), who is a high school sophomore in West Virginia who has competed on girls’ track teams under prior injunctions. Both argued that the bans violate the Constitution’s Equal Protection Clause of the 14th Amendment and Title IX, the 1972 federal law prohibiting sex discrimination in education programs, including athletics.

Interestingly, lower courts had sided with the challengers (being the transgender athletes), even issuing injunctions to allow their participation in sports with biological females while litigation proceeded. But then, the states of Idaho and West Virginia appealed, seeking to reinstate the bans on transgender athletes, with support from the Trump administration, which is an administration that has notably has prioritised restricting transgender participation in women’s sports through executive actions.

SHOULD TRANSGENDER ATHLETES ON PUBERTY BLOCKERS BE ALLOWED TO COMPETE WITH GIRLS?

Let’s proceed to the oral arguments. First, Michael Williams – who was representing the state of West Virginia – put forth the argument that “States have long assigned students to sports teams by sex (meaning male or female). He then insisted that the West Virginia law, in assigning students to sports teams by sex, was intended to ensure that women and girls “can safely and fairly compete in school sports.”

Then, Kathleen Hartnett and Joshua Block, who argued on behalf of Hecox and B.P.J (the transgender athletes), respectively… they countered that Title IX and the 14th Amendment (which contains the Equal Protection Clause) are intended to protect everyone. And if transgender athletes like B.P.J. and Hecox do not have the biological advantages that the laws target in the name of fairness (for example, if the transgender athletes have less testosterone than biological males due to taking puberty blockers), then there is no reason why these transgender athletes cannot play on sports teams that match their gender identity (which is what they claim to identify as). Moreover, Block added that unlike a case where a biological boy (who does in fact identify as a boy) is excluded from girls’ sports, excluding B.P.J (who is a biological boy pretending to be a girl) from the girls’ teams excludes BPJ from all athletic opportunity while stigmatising and separating him from her peers”, and here Joshua Block is trying to imply that BPJ’s peer are biological girls despite the fact that he is a biological boy, claiming to be a girl.

But, despite the very obvious errors with this argument, the court’s Democratic appointees appeared to agree with the legal representatives of the transgender athletes. In particular, Justice Ketanji Brown Jackson, for example, asked about (quote) “someone who is transgender but who does not have, because of the medical interventions and the things that have been done, who does not have the same threat to physical competition and safety and all of the reasons that the state puts forward.” Why shouldn’t that person (who is essentially a  transgender person who took puberty blockers), be able to bring a challenge to the law as it applies to him/her? Here’s more on Justice Ketanji Brown Jackson’s take on the issues pertaining to how gender is defined, and the alleged unfairness that comes with it.

The simple response here is that there are advantages that biological men have that biological women do not have – irrespective of whether those biological men have taken puberty blockers or have lowered their testosterone, or even have a physical challenge, like a weaker ankle on their right side, for that matter. In more detail, women and girls are not defined merely by hormone levels or personal feelings; their sex-based category in sports exists for a fundamental reason: which is to ensure fair competition given the inherent biological differences between males and females.

Therefore, to claim that medical interventions like puberty blockers, make biological males equal to biological females in physical capacity appears to conflate intra-category competitive advantages with cross-category advantages. For additional clarity, intra-competitive advantages – such as greater height, weight, muscle mass, or natural talent – are those which occur within a single sex category. For example, one woman may be taller, stronger, or faster than others in her group, giving her an edge in women’s sporting events. This is the normal variation that makes sports exciting and even rewarding. It is the idea that you are competitively the best among people with a similar biological make up.

However, the legal representatives of the transgender athletes and even the Democrat appointed justices like Justice Ketanji Brown Jackson, they treat advantages gained from natural male puberty and physiology as equivalent to these intra-category differences, which they are not. In fact, biological males, even after hormone suppression, often retain significant physical advantages (such as greater muscle mass, bone density, lung capacity, and explosive power) that allow them to outperform females on average. Therefore, equating a woman being faster than other women to a male-bodied individual competing against women overlooks this fundamental sex-based disparity.

A clear illustration of this comes from track and field. In 1988, Florence Griffith Joyner (called Flo-Jo) set the women’s 100-meter world record at 10.49 seconds during the US Olympic trials, which is so fast that it is a mark that remains unbroken decades later. Now, this extraordinary performance made her the fastest woman in history.

YET, high school boys ROUTINELY surpass this time. Data from athletic tracking sources shows that hundreds of American high school boys achieve times under 10.75 seconds annually (for instance, over 1,000 in recent years). While exact counts of performances vary, it’s well-established that many elite high school male sprinters – who are often not even the absolute national top tier – run faster than Flo-Jo’s record. Not to mention, these are teenage boys, who are still developing, yet their biological advantages allow them to eclipse what is considered the pinnacle of female achievement in track and field with relative ease.

And so, this gap highlights why sex-segregated categories exist: they so NOT exist to diminish women’s accomplishments, but rather to protect them. Flo-Jo was unmatched among women, yet her time falls well short of what trained males can achieve due to sex differences in strength, speed, and power. Therefore, blurring these distinctions risks undermining the integrity of women’s sports, especially when we take into consideration that fairness requires recognizing that cross-sex advantages are not the same as natural variation within one sex.

THE TRUMP ADMINISTRATION PUSHES BACK AGAINST PROTECTIONS FOR A SUBSECT

Additionally, in response to the arguments put forward by the legal representatives of the transgender athletes and the promptings of the democrat led justices, Hashim Mooppan, who was representing the Trump administration, countered that the state was only required to show that there is a substantial relationship or a “reasonable fit” between its goal of ensuring fairness in women’s sports and its exclusion of transgender athletes. He added that the Supreme Court has made clear that “if the law from a state is substantially related in general,” individual challengers cannot argue that the relationship is lacking in their particular cases. And here, Mooppan was contending that everyone (including a majority of Democrats, by the way) agrees that in sports, for 99 percent of men, separation on the grounds of biological sex is reasonably tailored. It’s just the 1 percent of trans-identifying individuals who take puberty blockers, that is claiming to be discriminated against by a provision that 99 percent of athletes concede is legitimate – and this really is jarring.

Additionally, Chief Justice John Roberts was also skeptical of the arguments that the legal representatives of the transgender athletes had made, asking Hartnett to address whether or not the court should view Hartnett’s position as a challenge to the distinction between boys and girls on the basis of sex, or whether or not Hartnett is perfectly comfortable with the distinction between boys and girls, [and] just wants an exception to the biological definition of girls. And if the court were to adopt such an exception, Chief Justice John Roberts then suggested that this would have to apply across the board and not simply to the area of athletics. And the importance of this challenge is that it highlights that if the demands of the transgender athletes were to apply as laws of general application, they would have unjust and even discriminatory applications.

For instance, imagine if the biological definition for girls changes in the corrective justice system. All men convicted of sexual crimes would almost automatically be deemed a woman if they took puberty blockers and be sent to women’s prison. A male teacher who took puberty blockers would also have to be treated as a woman, and be given the same access to female students and female teachers. And so, no, they cannot argue this exception, without unleashing discriminatory and possibly harmful conduct towards biological women. But, here’s more from Hashim Mooppan, who was representing the Trump administration, arguing against the claimed discriminatory effect of categorising sports on the basis of biological sex as opposed to claimed gender.

One of the notable developments in this case was when Justice Clarence Thomas also voiced skepticism about the challengers’ position. He described a scenario in which a “lousy” male tennis player did not make the men’s tennis team “and wants to try out for the women’s tennis team.” Justice Thomas then asked Idaho Solicitor General Alan Hurst, the question on how is a lousy male tennis player wanting to try out for a women’s tennis team different from being required to allow transgender women on the women’s tennis team?

Idaho Solicitor General Alan Hurst responded that Justice Thomas’ scenario was “not at all different … and that’s exactly what they are concerned about.” The legal representatives of the transgender athletes’ efforts to carve out exceptions from the classifications “for people for whom that classification doesn’t make sense … don’t limit themselves to people who identify as transgender.”

In light of this, Hashim Mooppan offered what he characterised as a straightforward way to resolve B.P.J.’s case. And in the case of BPJ, he is a transgender high school student who has publicly identified as a girl since the third grade; and has taken puberty blockers to prevent the onset of male puberty, as well as hormone therapy with estrogen. In this case, Hashim Mooppan states that regulations issued under Title IX regarding equality in sports expressly authorize sex-separated teams, which the litigants agree means “biological sex.” Therefore, whether the challengers representing the transgender athletes (including BPJ) are correct that puberty blockers and hormone therapy eliminate any advantages that transgender athletes might otherwise have is thus irrelevant. Again there is merit to this argument, because it prevents any male who takes puberty blockers or claims to have a physical challenge like a weak ankle from claiming they are qualified to participate in women’s sports.

JUSTICE ALITO: “WHAT IS A BOY OR A GIRL, OR A MAN OR A WOMAN?”

During oral arguments, Justice Samuel Alito also sharply questioned one of the lawyers representing transgender athletes, being attorney Kathleen Hartnett, representing the challenger in the Idaho case: And he asked a crucial question, which has crucial consequences for how the supreme court ought to adjudicate this case. In particular, he asked: If such separation exists and is challenged under the Equal Protection Clause, “is it not necessary… to have an understanding of what it means to be a boy or a girl, or a man or a woman?” Hartnett affirmed that some understanding was required, but Justice Alito pressed further and asked that for equal protection purposes, what does it mean to be a boy or a girl, or a man or a woman?

Hartnett ultimately responded that their side did not have a specific definition to offer the Court. Instead, she explained that the argument relied on the statute’s application – excluding those identified as birth-sex males from women’s teams – while suggesting certain cases might warrant exceptions based on the state’s interests, without disputing biological distinctions outright. From this response, Justice Alito then crucially highlighted the core issue: which is “How can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?” And this moment has really drawn widespread attention, because it is a pointed challenge to arguments that seek to expand protections under sex-discrimination laws (such as Title IX) to include gender identity, while struggling to define the underlying term “sex.”

But, the strong and consequential questions did not end there. Justice Alito also posed a question, in which he asked (quote): “Looking to the broader issue that a lot of people are interested in, 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?”

The courtroom reportedly fell silent as Hartnett responded, stating she would never label anyone a bigot and emphasizing that her arguments focused on constitutional validity rather than animus or prejudice. She added that laws should not be based on “undifferentiated fears” and noted that transgender athletes excelling in women’s sports are “few and far between,” particularly after hormone therapy.

Here, Justice Alito’s pointed question appeared to defend the views of biological female athletes who feel disadvantaged, pushing back against suggestions that such opposition stems from bias or delusion. In fact, even conservative justices, including Brett Kavanaugh – who referenced his experience coaching girls’ basketball and the growth of women’s sports under Title IX – supported arguments that allowing transgender participation could undermine fairness and opportunities for biological women, which is important seeing as transgender athletes only make up 1 percent of athletes, and yet are demanding a change to law and common sense that could allow discrimination and unfairness to so many biological women.

IS OPPOSITION TO TRANGENDER ATHLETES COMPETING WITH GIRLS A VIOLATION OF TITLE IX?

Let’s proceed to bring in a crucial piece of legislation central to this case, and this is Title IX. S, Title IX was an update to the Civil Rights Act, though formally passed as part of the 1972 amendments to the Higher Education Act’s reauthorization. The Civil Rights Act had not explicitly mentioned prohibiting sex discrimination in education, and Title IX was meant to close that loophole. While Title IX does not even mention sports per se, its very name is synonymous with opening the doors to school sports participation for women, especially at the high school and collegiate level, because it mandated equal opportunities for men and women in all educational programs. During this time, there weren’t many girls’ sports teams or facilities for such teams at a number of high schools until Title IX.

Title IX has been a great champion for American women, until recently when the Obama and Biden administrations changed the definition of “sex” in Title IX to include gender identity. The problem with this approach was brought most vividly to the American consciousness by Lia Thomas, who, though having undergone full male puberty and not undergoing sex reassignment surgery, was permitted to compete as a woman in NCAA swimming events in 2022 on the basis of professed gender identity, capturing titles and setting records. Lia Thomas was also permitted to change in the female locker room. 

I believe you also found it curious and very note-worthy how it became difficult for the Biden Education Secretary to answer questions of there being sexual harassment when the biological gender of the trans athlete – in this case Lia thomas – was considered. This happens because they consistently failed to ask themselves the basic question on: what is a girl, particularly independent of the definition that would come from gender theory. 

But, unfortunately, the pretence of being ignorant of a straightforward answer to the question on what is a girl is seen even in the status quo. On January 14th, a Senate Health, Education, Labor, and Pensions (HELP) Committee hearing on the safety and regulation of the abortion pill mifepristone took place. The hearing, which was focused on examining reproductive health access post-Roe v. Wade, featured testimony from experts, including Dr. Nisha Verma, a board-certified OB/GYN and fellow with Physicians for Reproductive Health. Senator Josh Hawley (R-MO) used his questioning time to press Verma on a seemingly straightforward but loaded question: which is “Can men get pregnant?”

Senator Hawley opened by referencing Dr Verma’s prior statement that “science and evidence should control, not politics.” He demands a yes-or-no answer, framing it as establishing “biological reality.” To which Dr Verma pauses repeatedly, explaining her hesitation: which is that she treats patients with “different identities,” including those who don’t identify as women but can become pregnant (implying transgender or non-binary individuals). She accuses the question of being a “political tool” that reduces complex lived experiences to polarisation. 

To this, Senator Hawley insisted that the issue is not  hypothetical, and even cited ongoing Supreme Court arguments on gender-related matters. But, Senator Hawley further declared for the record that “women get pregnant, not men,” highlighting differences between biological males and females; and added that Dr Verma’s stance is “deeply corrosive” to science and constitutional protections for women, labeling it a discredited political agenda – which is true. ANd this matters in light of Title IX and the oral arguments in the supreme court because pretences at the lack of a definition of biological sex or words like “woman” are why the Obama and Biden administrations were able to corrupt the original purpose of laws like Title IX that were aimed at curating protections for biological women.

Written By Lindokuhle Mabaso