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WASHINGTON – Trained military snipers stood on the roof of the U.S. Supreme Court Tuesday standing guard over a verbal battle between an alliance of women donning shirts that read XX-XY, against a hoard of pink, white and blue-painted activists, some wearing costumes, and some barely wearing anything.
At one point, the convergence descended into harrowing cries of “Stop cutting off the breasts!” while the other side tried to drown it out with a blunt and repetitive chant of “Trans! Trans! Trans!”
But inside the court chambers, one side was constantly in full retreat.
Attorneys for transgender athlete Lindsay Hecox argued to have the very lawsuit that they originally filed, Hecox v Little, dropped as moot now that it was being reviewed by the nation’s highest court. The suit, which was filed in 2020, blocked Idaho’s law to protect women’s sports and allowed Hecox to compete on Boise State’s women’s cross-country team.
And in a defining moment for the trans athlete legal team, it even had to retreat from one of the very arguments it used to try to get the case dropped. Cooley Legal attorney Kathleen Hartnett admitted that Hecox was “unlikely” to graduate in May after the firm previously argued that the athlete’s May graduation would render a ruling about Hecox’s athletic eligibility unnecessary.
“She’s unlikely to graduate by May, as my friend said, but is hoping to make, through summer credits, to graduate in the fall,” Hartnett said just months after the firm filed a suggestion of mootness, in which Hecox stated, “I am currently enrolled in classes that may allow me to graduate as early as May 2026.”
Earlier in the hearing, Idaho Solicitor General Alan Hurst called out Hecox’s claimed graduation date of May as “not possible” after the state’s leadership did some back-door digging to discover Hecox’s status.
“[Boise State] is a client of Idaho, we asked, and the university confirmed that it’s unlikely to happen in the spring,” Alliance Defending Freedom (ADF) legal counsel John Bursch, who has worked with the Idaho and West Virginia AGs on the Supreme Court case, told Fox News Digital. “It just shows that throughout the case, Hecox has flipped back and forth.”
Idaho Attorney General Raul Labrador said that exposing the discrepancy was “important” to their arguments Tuesday.
“I think it’s important. I don’t think it’s the main issue in the case, but I think it’s important,” Labrador told Fox News Digital. “They could have made that argument when we filed the petition for review … but they didn’t. They only did that after cir was granted.”
The plaintiffs appeared to retreat again during oral arguments for the second case.
In that case, over a West Virginia trans teen who also sued to block a state law meant to keep males out of girls’ sports, American Civil LIberties Union (ACLU) attorney Joshua Block suggested that “sex” should not be defined.
“I really urge the court not to do it on the definition of sex argument,” Block said, later adding. “I don’t think the purpose of Title IX is to have an accurate definition of sex. I think the purpose is to make sure that sex isn’t being used to discriminate by denying opportunities.”
But after grilling from Chief Justice John Roberts, who insisted sex “must mean something,” Block conceded that sex should be defined by biology for the sake of this case, but this case only.
“I think for this case, you can accept, for the sake of this case, that we’re talking about what they’ve termed to be biological sex,” he said.
Fox News Digital asked Block what his definition of “sex” is, and he declined to give a definition.
“I don’t think that’s what, that’s what’s at issue in this case. What’s at issue in this case is fair treatment for all people, including cis people and trans people, and that’s what we’re hear to talk about to today,” Block answered.
Fox News Digital attempted to ask Block why sex should not be defined in the case, but the attorney walked away and did not take any further questions.
Unlike the ADF, Idaho and West Virginia attorneys who stood in the courtyard of the Supreme Court and took multiple questions from reporters, and even kept offering questions when the press had nothing left to ask, Block and his ACLU colleagues only answered the singular question about defining sex after offering preprepared statements.
Hartnett, whose previous claim to fame was helping a San Francisco man get a second-degree murder conviction vacated, said she was “proud” of her legal team’s efforts on Tuesday.
“I was particularly proud here today to be able that the court understood the serious discrimination the transgender community has faced,” Hartnett said.
Just then, Lambda Legal CEO Kevin Jennings, who has co-counseled both cases, jumped in to loudly declare the West Virginia trans athlete “an American hero!”
“Because she stood up for millions of other kids today and said ‘we belong, we matter, we are equal!’” Jennings shouted.
Jennings’ hesitation-less declaration of the West Virginia teen a hero came amid the backdrop of sexual harassment allegations that were leveled against the athlete prior to the hearing by former teammate Adaleia Cross.
The ACLU denied the allegations in a previous statement to Fox News Digital.
“Our client and her mother deny these allegations, and the school district investigated the allegations reported to the school by A.C. and found them to be unsubstantiated. We remain committed to defending the rights of all students under Title IX, including the right to a safe and inclusive learning environment free from harassment and discrimination,” the statement read.
The trans athlete then denied the allegations to The New York Times in a story that was published Monday, saying “I was not raised like that.”
Still, West Virginia Attorney General John McCuskey acknowledged the allegations at a press conference just one day before the hearing on Monday.
“Any time you think of a child being harassed, it gives you pause as a parent. And it isn’t really part of our case, but harassment of any child of any kind in this country is inappropriate. And it’s wrong, and we all need to stand up to ensure that children aren’t being harassed in any of their venues, particularly athletics,” McCuskey said.
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When Fox News Digital attempted on Tuesday to ask Block about McCuskey’s statement, the attorney walked away, ignoring multiple questions.
But the allegations would surface in greater and more emotional detail hours later.
On Tuesday night, during the ADF Gala in Washington, D.C., to celebrate oral arguments, Cross’s mother Abby Cross took the stage and became visibly emotional as she recounted the details of the trans athlete’s alleged sexual harassment against her daughter.
Several individuals in attendance were seen crying, wiping tears from her eyes during the dialogue.
Former San Jose State volleyball player Brooke Slusser, who unknowingly shared changing spaces and sleeping spaces with a biological male teammate in the 2023 season, was there and admitted she was one of those in attendance who shed tears during Abby Cross’s speech.
“It tugged at my heart. I mean, a lot of these things do, but it was hard to hear from a mother especially,” Slusser told Fox News Digital. “It’s awful. It brought tears to my eyes.”
Former North Carolina high school volleyball player Payton McNabb, who suffered permanent brain injuries after being spiked in the head by a trans opponent, said the alleged story made her “physically sick.”
“Hearing that story honestly made me physically sick. This is exactly why we are fighting, because this is what is happening to young girls. It’s not a secret. People know this is happening, yet girls are being told to be quiet, to be inclusive, to accept harassment,” McNabb told Fox News Digital.
“No girl, especially no child, should ever experience that. The fact that some people excuse it or even celebrate it is pure evil.”
But the mood of the event shifted as the night progressed amid optimistic messages by the “Save Women’s Sports” activists and attorneys, many of whom believed they walked away from Tuesday’s hearing with a definitive win.
The consensus among pundits is that the Supreme Court justices and its conservative majority appear prepared to allow Idaho, West Virginia and other states across the U.S. to uphold its laws to keep biological males out of women’s and girls’ sports.
Labrador shared in that optimism.
“I think the arguments are on our side,” Labrador said.
“I was actually surprised how the judges, who I assume are not going to be as friendly to our side, were really struggling with the questions that we’re going before the court, and they were trying to find a way to articulate the other side’s position, and even they were having a hard time articulating the other side’s position.”
A decision is expected by this summer.
McCuskey has said he is optimistic that the court will rule 9-0 in favor of West Virginia and Idaho. Labrador expects a win, but believes 9-0 is too optimistic.
In addition to a potential new legal precedent, the culture movement around the issue only appeared to gain more fuel on Tuesday.
XX-XY Athletics co-founder Jennifer Sey told Fox News Digital that the brand is now getting more than 30 brand ambassador applications per week from college athletes — a dramatic turnaround from the brand’s first year in 2024 when Sey had to be the one pursuing endorsers.
Nowhere was the growing cultural movement more visible than the protest outside the court, which saw women from across the country who have spoken out about their experiences with transgender athletes, led by the likes of Slusser, McNabb and Riley Gaines.
“It was definitely surreal,” Slusser said of the rally, who is eagerly awaiting resolution on the case, saying “the unknowing of what’s going to happen next and not getting an answer yet,” is hard for her.
Women’s fencer Stephenie Turner, who went viral for kneeling in protest of a trans athlete and getting disqualified for it last spring, was refreshed to be surrounded by so many people who agreed with her on the issue.
“It was amazing to be in a room with people who are in agreement on common sense for the first time. Sometimes I feel like I’m going crazy on this issue when I talk to people who are on the fence about men and women’s sports, it’s nice to be in a room with people who are clear decisive language and know what, this is a zero-sum game and that we must be on the side of protecting women and girls,” Turner told Fox News Digital.
When looking at the pro-trans protesters they were clashing with, McNabb couldn’t help but wonder how they got to that point.
“I didn’t interact with them directly, but watching from a distance was honestly sad,” McNabb said. “What stood out most to me was the number of women over there actively opposing their own rights — it’s completely bizarre.”
Pro women’s golfer Lauren Miller, who spoke out against transgender golfer Hailey Davidson and helped prompt the first rule change in major pro women’s sports to protect the sport from biological males in late 2024, also felt mixed emotions seeing the other side on Tuesday.
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“I’ve never seen anything like that before…. to face it directly and to see it, it really made me understand the weight of what we’re doing,” Miller told Fox News Digital.
“I feel for them because they’ll never have the peace and the joy and the purpose that we have on our side… I really hope they can see the light because their world will be a lot better.”
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