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Supreme Court Justice Samuel Alito grilled an attorney representing a biological male athlete in the case of Little v. Hecox on Tuesday about the definitions of a woman and girl.
Alito asked Kathleen R. Hartnett, who is arguing on behalf of the Idaho student in the Supreme Court case, what it meant to be a “boy or a girl or a man or a woman” when it came to equal protection purposes. Hartnett agreed that a school may have separate teams for students “classified as boys and a category of students classified as girls.” Hartnett also agreed there needed to be “an understanding of what it means to be a boy or a girl and a man or a woman.”
“Sorry, I misunderstood your question. I think the underlying enactment, whatever it was, the policy, the law, we’d have to have an understanding of how the state or the government was understanding that term to figure out whether someone was excluded,” Hartnett said. “We do not have a definition for the court. We’re not disputing the definition here.
“What we’re saying is the way it implies in practice is to exclude birth-sex males categorically from women’s teams and there is a subset of those birth-sex males where it doesn’t make sense to do so according to the state’s own interest.”
Alito then asked, “How can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?”
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“I think here we just know, we basically know that they’ve identified pursuant to their own statute, Lindsay qualifies as a birth-sex male and she is being excluded categorically from the women’s teams as the statute,” Hartnett responded. “So, we’re taking the statute’s definitions as we find them and we don’t dispute them. We’re just trying to figure out, do they create an equal protection problem?”
Alito then posed a hypothetical question to Hartnett about a boy who has never taken any kind of puberty blockers or other medication but believed they were a girl and whether a school can say the boy cannot participate on a girls’ sports team.
Hartnett suggested the hypothetical wasn’t necessarily what her side was arguing.
The issue at hand is whether laws in Idaho, and West Virginia, that prohibit transgender athletes who identify as women from playing on teams that match their gender identity, discriminate based on sex.
In the case of Little v. Hecox, a biological man who sought to compete on the women’s track and cross-country teams at Boise State University, contended that Idaho’s law, the Fairness in Women’s Sports Act, violated the equal protection clause by excluding transgender women.
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Lawyers for the states defending the bans maintain that separating sports based on biological sex preserves fairness and safety for female athletes and is consistent with Title IX’s definition of sex.
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