On Tuesday, the United States Supreme Court heard oral arguments in two cases that address an issue that, “until sometime in the past decade, was not only uncontroversial but utterly unquestioned: girls sports are for girls,” according to an amicus brief signed by Eagle Forum. The Court will decide in these cases, West Virginia v. B.P.J. and Hecox v. Little, whether States can protect women’s and girls’ sports from participation by males who “identify” as female. Currently, 27 states have laws protecting athletes based on their biological sex. President Trump began his second term by signing an Executive Order making it the “policy of the United States to oppose male competitive participation in women’s sports more broadly, as a matter of safety, fairness, dignity, and truth.” The question is whether the highest court in the land will agree.
In 2021, West Virginia’s then-Governor Jim Justice (now a U.S. Senator) signed into law the Save Women’s Sports Act to clarify that athletes must compete on teams based on their biological sex. The law defines biological sex with criteria such as internal and external reproductive anatomy, levels of testosterone, and genetic makeup. It didn’t take long before the common-sense law was challenged by the American Civil Liberties Union (ACLU).
A boy who goes by the name Becky Pepper-Jackson (abbreviated B.P.J. in the lawsuit) was 11 years old at the time and was competing in girls track-and-field events while taking puberty blockers. After the law was passed, her mother appealed to the ACLU to challenge the law when she learned her child would now have to participate on the boys’ team. A federal district court upheld the WV law. The ACLU appealed this decision to the Fourth Circuit Court, which held that the law violated, in part, the Constitution’s Equal Protection Clause and Title IX, which prohibits sex-based discrimination in education.
Just one year before, Idaho passed a similar bill called the Fairness in Women’s Sports Act. It’s no surprise that the ACLU challenged this one as well. This case involves Lindsay Hecox- a man who identifies as a woman — who was denied the chance to try out for Boise State University’s women’s track and cross-country teams. Idaho’s law, the first in the nation to address the issue, was put on hold when the lower federal Courts ruled that the law discriminates against “transgender status” in violation of the 14th Amendment. Little v. Hecox made its way to the Supreme Court to be heard side-by-side with West Virginia v. B.P.J.
Legal observers are predicting that the Supreme Court will hand down a win for biological women. During the arguments, the Supreme Court Justices did not shy away from difficult questions. West Virginia Attorney General JB McCuskey and Idaho Solicitor General Alan Michael Hurst navigated each inquiry masterfully. Hurst stated, “Sex is what matters in sports,” and McCuskey built on that notion, saying “the law is indifferent to gender identity, because sports are indifferent to gender identity.” In other words, the law (Title IX) and sports recognize ‘sex’ because it is based on the immutable physical differences in strength and ability in males and females. The same doesn’t apply to ‘gender identity’ because it is a choice based on perception and presentation.
Justice Brett Kavanaugh spoke about the scientific uncertainty of transgenderism, while Justice Sonia Sotomayor asserted that science shows no difference between ‘cisgender’ women and trans women. Besides inherent genetics, we know that there is strong scientific evidence that shows the biological differences between men and women are real and have significant consequences for athletic performance.
The ACLU’s Senior Counsel Joshua Block argued that males identifying as females were being excluded from the female teams. McCuskey countered this argument by reminding the Court that these males were not being excluded from the male teams; they are choosing not to play on the team of their biological sex. Additionally, exclusionary measures are common in competitive “zero-sum” sports teams. Not everyone makes the team, and some are cut because they may not have a certain level of performance skills.
Perhaps the most mindboggling argument from Block was that “sex” should not be defined and urged the Court not to do so when asked for a definition by Justice Alito. He asserted that a definition of ‘sex’ would be harmful to transgender people. He later tried to walk back his comments by saying that defining sex would be beneficial for this case only. Sometimes the truth hurts.
Attorneys for Hecox have tried to get the Court to render the case moot because Mr. Hecox does not like the attention it has caused. It is also not lost on them that odds are not in their favor, which could have sweeping effects on our nation’s sports laws.
In a Letter to the Editor in the Wall Street Journal, Selina Soule, a track and field athlete who was forced to compete against males during high school and robbed of medals and championships, wrote the following that eloquently sums up the issue in these cases:
Beyond the obvious issues of fairness and safety, however, men competing on women’s teams underscores a fundamental, biological truth: Men and women are different — irreversibly, insurmountably different and distinct in anatomy and physiology. Men are bigger, faster and stronger in ways drugs and feelings can’t change. Ignoring those facts puts female athletes at risk of injury or injustice, and it reverses 50 years of advancement on and off the athletic field.
Eagle Forum joined two amicus briefs in support of “keeping sports fair for women and girls and creating opportunities for them that will encourage the years of disciplined training necessary to achieve athletic success.” To listen to the recording of the oral arguments, visit the Supreme Court’s website here. We expect the Supreme Court to issue a decision either during its June or October sessions, and we will keep you informed of the outcome through our weekly emails. Make sure you are signed up for our email list here!
