Inside The Fight To Protect Women’s Sports At SCOTUS

Summary

Federalist Radio Hour Episode: Inside The Fight To Protect Women’s Sports At SCOTUS Host: Matt Kittle Guest: Sarah Parshall Perry, Vice President and Legal Fellow at Defending Education Date: January 20, 2026

---

Overview

This episode examines two landmark Supreme Court cases—Little v. Hecox and West Virginia v. B.P.T.J.—that challenge state laws restricting participation in women’s sports to biological females. Host Matt Kittle and guest Sarah Parshall Perry delve into the oral arguments, legal frameworks, cultural context, and potential ramifications for women’s and girls’ athletics, Equal Protection, and Title IX. They discuss the broader cultural and legal battle lines over the meaning of sex, gender, and fairness in sports.

---

Key Discussion Points and Insights

1. Setting the Stage: The High Stakes at SCOTUS

• The episode begins with Matt Kittle outlining the core issue: "These are two Supreme Court cases. If you're not familiar, they have major implications for women's and girls sports and whether schools must allow male athletes to compete on girls teams." (00:31)
• Perry contextualizes the cases as part of a "cultural moment" and a challenge to long-held federal civil rights principles, especially Title IX. (02:54)

2. The Core Legal Questions and Courtroom Drama

• Justice Samuel Alito questioned counsel for the transgender athlete on definitions: "What does it mean to be a boy or a girl or a man or a woman when it came to equal protection purposes?" (01:40)
  • Hartnett, representing the athlete, replied, “We don’t have a definition.” (02:32)
• Perry underscores the surreal nature of the debate: "The fact that these questions have to go all the way to the Supreme Court, the highest court in the land for resolution, indicates how far we have strayed from the notion of biological reality..." (02:54)
• The tension in oral arguments is highlighted by the struggle and frustration of the justices, particularly Alito, at counsel's inability or inconsistency in defining “woman,” making it almost impossible to assess sex discrimination claims. (06:00)

3. Sides and Strategies in Oral Arguments

• Perry notes: "The liberal justices... spent the majority of their lines of questioning trying to narrow what I anticipate to be an upcoming victory for both of the states." (08:43)
• Mootness was considered—whether the cases were still “live”—but only Justice Sotomayor seriously questioned it. (08:43)
• Justice Roberts focused on whether the plaintiffs were challenging the male/female distinction itself, or seeking only a narrow exception for some transgender athletes. (13:13)
  • Perry: "She had to be honest and say, we're not taking issue with the definitions. In fact, it did her well to make that concession." (13:13)

4. Title IX and Legislative Intent

• Perry draws a sharp line between the original meaning and modern reinterpretations of Title IX:
  • “Title IX... meant biological distinctions between male and female. And that's precisely what these two states had replicated.” (13:13)
  • She details the Biden administration’s reinterpretation of "sex" to include gender identity, the ensuing state reaction, and the litigation landscape. (16:56)
  • The Biden administration’s regulations faced near-universal defeat in court, with 11 federal lawsuits against them all succeeding in blocking or vacating the rules. (16:56)

5. Federalism, States’ Rights, and Patchwork Outcomes

• There’s a strong prediction that the Supreme Court will leave much discretion to the states, citing the Dobbs and Scrovetti decisions and the overall inclination of the Court to defer to legislative judgment. (22:13, 23:00)
  • Perry: “They do not want to get involved in questions on which state legislators have already spoken.... I would be very surprised if that... language does not make an appearance in these issues here.” (22:13)
• On the flip side, states with trans-inclusive policies still have to navigate Title IX if they accept federal funding; the federal-state legal relationship remains complex. (24:51)

6. The Historical Arc and Political Ramifications

• Perry reflects on the history of Title IX, noting both its original motivation—to remedy discrimination against women in education and sport—and the fact that "gender identity, transgender status never appeared once" in the legislative record. (30:45)
• She expresses disappointment in the silence of first-wave feminists and underscores the tension between original legislative intent and current applications. (30:45)

7. The Cultural Divide and Future Legal Battles

• Kittle frames the debate as a conflict between “reality and insanity,” cutting across party lines, given polling data that shows strong bipartisan support for single-sex sports teams. (41:58, 34:38)
  • Perry notes, "65% of Democrats want sports separated by biological sex," calling it an "80/20 issue." (34:38)
• Perry suggests the possibility of third, co-ed sport categories for transgender athletes as a democratic solution, rather than redefining existing categories. (34:38)
• Internationally, the Olympic Committee’s evolving policy is mentioned as an indicator of global attitudes shifting on the issue, prompted by compelling and sometimes disturbing athletic outcomes. (37:10)
  • Perry references the Angela Carini incident and the clear biological advantages retained despite attempts to level the field. (38:08)

8. Broader Implications: Gender Secrecy Policies

• Perry previews three Supreme Court cases related to parental rights and gender secrecy plans in schools, where schools may hide a child’s gender identity status from parents. (42:49)
  • She stresses: "We have maintained for the better part of six years the only database in the country tracking the number of gender secrecy policies coast to coast. At this point, there are approaching 13 million children who attend schools with these express policies on the books. We are eager for the Court's resolution." (43:07)

---

Notable Quotes & Memorable Moments

• Matt Kittle (01:31): “Let us begin here with the absolute insanity of what I like to call the Lola camp. Do you remember the Kinks song, Lola? The girls can be boys and boys can be girls... It is indeed a mixed up, muddled up, shook up world.”
• Justice Alito (quoted by Kittle) (05:41): “How can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?”
• Sarah Parshall Perry (06:11): “[Alito] is, I think, one of my emerging favorite justices because... it is usually Alito who comes out and says the ob thing, which is, what does sex mean?”
• Perry (24:51): “As is the nature of the tenth Amendment, police power to regulate on things like health, safety, welfare, medical licensing, education. We may see the same thing here. Now there is one superseding question... federal law trumps state law when federal law would be frustrated... by contrary state laws.”
• Perry (34:38): “I do not believe constitutional or statutory principles of interpretation require the 99 to bend the will of the 1. And that is exactly what we heard in colloquies with Justice Thomas, Justice Alito, and... Justice Kavanaugh, when they said the law applies for 99% of individuals, you are asking us to create an exception.”
• Perry (40:24): “Never in American civil rights jurisprudence has the court recognized that someone's internal sense of their own reality requires the rest of American culture to facilitate it.”
• Perry (43:07): “At this point, there are approaching 13 million children who attend schools with these express [gender secrecy] policies on the books. We are eager for the Court’s resolution.”

---

Key Timestamps for Important Segments

• 00:31–02:54: Introduction, case background, and cultural context
• 05:02–07:46: Justice Alito’s frustration with definitions; "shot across the bow" exchange
• 08:43–13:13: Oral argument strategies and likely outcomes; Chief Justice Roberts’ probing of narrow exceptions
• 16:03–21:09: Legislative, regulatory, and legal history of Title IX, Bostock, and state actions
• 22:13–24:51: Predictions for patchwork outcomes and federalism implications
• 30:45–34:38: Disappointment with feminist silence; Title IX’s origin and intent; legislative inertia
• 34:38–37:10: Political consequences, polling data, and democratic solutions
• 37:10–41:58: International ripple effects, Olympics, and the challenge of biological advantage
• 42:49–44:54: Preview of future Supreme Court litigation on parental rights and gender secrecy in schools

---

Tone and Style

• The conversation maintains a direct, at times incredulous, and passionate tone, reflecting both Kittle’s and Perry’s frustration and determination regarding what they view as the legal and cultural stakes of the cases.
• Perry provides detailed legal insight in plain language, expressing a clear originalist and textualist viewpoint anchored in legislative history and constitutional structure.

---

Conclusion

This episode offers an in-depth analysis of the battle over women’s sports at the Supreme Court, examining both legal doctrine and cultural implications. It highlights the complexity of gender identity issues in educational and athletic settings, the enduring power of state law, and the continuing impact of Title IX. Perry forecasts a likely victory for state laws restricting sports by biological sex, while preparing for new fronts in the ongoing legal and policy debates over gender and parental rights in education.

Transcript

[A]

And we are back with another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections correspondent at the Federalist and your experience Sherpa on today's quest for knowledge. As always, you can email the show at RadioThe Federalist.com follow us on X@FDR LST. Make sure to subscribe wherever you download your podcast and of course, the premium version of our website as well. Our guest today is Sarah Partial Perry, vice president and legal fellow at Defending Education, Little v. Hecox and West Virginia vbtj. These are two Supreme Court cases. If you're not familiar, they have major implications for women's and girls sports and whether schools must allow male athletes to compete on girls teams. The Supreme Court heard oral arguments on both last week and Sarah has a good deal of expertise on this front. Thank you so much for joining us on this edition of the Federalist Radio Hour.

[B]

Thanks for having me, Matt.

[A]

You bet. Remarkable times these, and remarkable oral arguments. Let us begin here with the absolute insanity of what I like to call the Lola camp. Do you remember the Kinks song, Lola? The girls can be boys and boys can be girls side it is. It is indeed a mixed up, muddled up, shook up world. 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. This is from Fox News Alito and Kathleen 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 said.

[B]

We.

[A]

Don'T have a definition. And here we are again. Sarah, we have seen this over and over and over again. The follow the science folks can't come up with a definition for a woman. And that is again, to my estimation, the underlying insanity of all of this.

[B]

Yeah, I think that indicates exactly where we are culturally. In fact, the fact that these questions have to go all the way to the Supreme Court, the highest court in the land for resolution, indicates how far we have strayed from the notion of biological reality and also from pure textualist application of long standing federal civil rights law. Because remember, we're not just talking about constitutional constitutional challenges here, a violation of the fourteenth Amendment's equal protection clause, but we're also talking about the implication of Title 9 of the Education Amendments of 1972, which has for a long time acted as a bulwark against sex discrimination in federally funded education programs and was considered by many to be the crowning achievement of the women's liberation movement. In fact, it was a federal court decision coming out of Connecticut in which a young woman by the name of Susan Hollander sued her Connecticut high school for failing to offer a girls track team and preventing her from running with the boys. But in a summary dismissal of her litigation in 1971, a federal judge actually wrote the now infamous term that we need athletic character in our boys. We don't need that athletic character in our girls. So it was that kind of sort of outdated sensibility that motivated the quest for educational equality. But as some have said, everything old is new again. And biological girls and women find themselves on the upside down of this argument trying to fight for the spaces that their grandmothers had already secured.

[A]

Yeah, we're going to play a little of the audio here from the questioning and justice Alito, per usual, is right, right on track and you know, pretty, pretty poignant in his questions. Is it not necessary for there to be, for equal protection purposes if that is challenged under the equal protection clause, an understanding of what it means to be a boy or a girl or a man or a woman?

[B]

Yes, your honor.

[A]

And what is that definition for equal protection purposes? What does it mean to be a boy or a girl or a man or a woman?

[B]

Sorry, I misunderstood your question. I think that 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 just understanding that term to figure out whether or not someone was excluded. We do not have a definition for the court, and we don't take issue with the, we're not disputing the definition here. What we're saying is that the way it applies in practice is to exclude birth sex males categorically from women's teams and that there's a subset of those birth sex males where it doesn't make sense to do so according to the state's own interest.

[A]

Well, how can you, how can a court determine whether there's discrimination on the basis of sex without knowing what sex means for equal protection purposes?

[B]

I think here we just notice, we, we basically know that the, that they've identified pursuant to their own statute.

[A]

What did you think of justice Alito's it frustration through, through all of this? And, and, and to me, it's, it's quite understandable.

[B]

Oh, absolutely. And in fact, he is, I think, one of my emerging favorite justices because in a lot of the cases that concern these hot button political questions, and especially so when there are implications of gender identity, something we've seen not only in these pair of cases, but in the Childs vs Salazar case earlier this term and also in last terms, Mahmoud vs. Taylor and the US v. Scrovetti cases, it is usually Alito who comes out and says the ob thing, which is, what does sex mean? Now, the fact that he's sitting and very senior, I might add, Supreme Court justice has to ask these questions indicates how creative some of the litigators have been in trying to skate the elephant in the room. And that is, what is the nature of biological sex? And on that colloquy with Kathleen Hartnett, who is representing one of the transgender athletes, pressing her on the notion of biological sex, she said, we do not have a definition for the court, but then said, we're not asking the Court to define it. We're only asking the court to determine whether, based on that classification, this individual has been discriminated against. And so he asked, he asked exactly the same thing I would, which is how can we tell if an individual has been discriminated against based on this classification? If you cannot identify the classification? That was, for me, I think, the real shot across the bow moment.

[A]

It makes you want to pull your hair out as someone who applies reason.

[B]

Absolutely.

[A]

Or at least attempts to do so. Yeah, it is amazing. But that's how this argument continues. It's a circular firing squad of an argument, and it never gets to it. And that's obviously the frustration of Justice Alito. Let's cut through this nonsense now. Watching the oral arguments, there were, I think, signs from, from these oral arguments that both sides on this issue could grab and say, oh, well, look here. They're, you know, they're, they're talking about possibility for victory for our side. What did you, what was the ultimate takeaway for you from these, these oral arguments on, in terms of where this Court may be standing with this issue?

[B]

It's interesting because the justices, the three liberal justices, Sotomayor, Kagan and Jackson, spent the majority of their lines of questioning trying to narrow a. What I anticipate to be an upcoming victory for both of the states. First, Justice Sotomayor was the only one who seemed even remotely concerned with the arguments advanced by Hickox, which was that the case was moot because he did not intend to play sports this year, was readying for graduation, and had apparently suffered too much of these slings and arrows of outrageous commentary because of Hickox's presence in the media over this case. But only Sotomayor and for a Very brief period of a few minutes, asked questions relative to whether the case was moot. The rest of the Justices did not seem concerned with it at all. So I don't think the mootness argument is a winning argument. Then. The other line of questioning dedicated specifically to narrowing a potential victory was related directly to whether or not we can warrant rule unconstitutional. Two state laws for whom 99 of individuals will be subject to but 1% of individuals, those biological males who have taken the potentially blunting athletic effect drugs like puberty blockers or cross sex hormones, whether they might be able to play. And what the Justices rightly identified, all six of the conservatives, was that the taking that as applied versus facial equal protection challenge, and this is sort of a new creature of American jurisprudence, is generally when we deal with questions of the Equal Protection Clause, they are unconstitutional on their face or they are constitutional on their face. We don't pick and choose those individuals to whom the 14th Amendment will apply. And so Justice Thomas, Justice Kavanaugh, Justice Alito rightly pointed out that what the transgender athlete attorneys were arguing for here was a very precise subset, a classification within a classification for whom those particular state laws might not apply. And what Justice Alito pointed out was, well, then you've not asked us to approve and apply intermediate scrutiny scrutiny, which we generally use for classifications based on sex. And that comes from a long line of cases dating all the way back to Frontiero versus Richardson in 1979. You are instead asking us to apply the most exacting constitutional scrutiny, and that is strict scrutiny, which means it must be a perfect fit for every individual subject to its provisions. The Constitution does not demand that. It only demands that particular substantial relation that will satisfy that intermediate tier. What these two petitioner, athletic, you know, athletic athletes who are competing with biological girls are asking, is to create an exception just for them. That was what the liberal justice is focused on. And I don't think it's something the rest of the Court is inclined to go along with.

[A]

Yeah, I mean, really a very, very narrow exception. And it does beg the question, you know, as a country of majority rule, but respecting the. The minority. How far do you go? I thought this was interesting. My colleague Sean Fleetwood does an excellent job covering the Supreme Court, and he covered this extensively. He noted Chief Justice John Roberts questioned Hickox's attorney, again, Kathleen Har, about whether or not the Court should view her position as a, quote, challenge to the distinction between boys and girls on the basis of sex, or whether or not she is perfectly comfortable with the distinction between boys and girls, but she just wants an exception to the biological definition of girls. He also appeared to espouse concern about the can of worms it would open up should the court adopt such a position. What did you think about that exchange?

[B]

Very astute on the Chief's part, I believe. And what she had said in response did surprise me in that she said, they are not taking issue. They do not take umbrage with the state's definitions of male and female biological sex. And even Sotomayor, which I thought was interesting, had to aver that, yes, it was very clear. That is the two prong analysis here, the equal protection clause and title nine. Title nine, clearly, when it was in 1972, meant biological distinctions between male and female. And that's precisely what these two states had replicated in Idaho and in West Virginia. So Kathleen Hartnett had to be honest and say, we're not taking issue with the definitions. In fact, it did her well to make that concession. Because to ask the court to pull from the ether ex nelio this new definition of biological sex, we have recognized from time immemorial what that means and our entire canon of civil rights laws is organized thereon, I think would have been foolish. It would have been a fool's errand on her part. And so she said, I don't take issue with the definitions. We are asking for an exception. But again, to ask for that exception, as the Chief pointed out, opens an entire can of worms.

[A]

Will Washington's housing fixes backfire? The Watchdog on Wall street podcast with Chris Markowski Every day, Chris helps unpack the connection between politics and the economy and how it affects your wallet. Trump plans on purchasing billions in mortgage backed securities as well as allowing people to use retirement to make down payments. Does adding more cash bring down the price or add fuel to the fire? Whether it's happening in D.C. or down on Wall street, it's affecting you financially. Be informed. Check out the Watchdog on Wall street podcast with Chris Markowski on Apple, Spotify or wherever you get your podcasts. I think we do need to take a few steps back here and ask the question, how on earth did we get to this point? As you had noted before, understandably, it is remarkable that we are even asking these kinds of questions that we are asking the highest court in the land to have to ask the question, what do you think a woman is? What do you think a girl is? But this goes back some time. Your organization has been working on this for quite some time. Tell me, give me a sense of where this all began how it got started. And then, of course, the work that you folks have done as well at the organization defending education.

[B]

This is very interesting. This has actually followed the better part of the past six years of my professional career because I was senior counselor council at the United States Department of Education in the Civil Rights Office, enforcing and applying Title ix, we actually worked to create a rule clarifying protections based on sexual assault and sexual harassment. We clarified protections for free speech and religiously based education institutions. And as we know, there was subsequent to that, an election and a decision by the Supreme Court in a little case called Bostock vs Clayton county and the Biden administration. Once Biden took office In January of 2021, one of his first actions as President was to issue order 13988. It is strange that I know that, but you can tell I've done a lot of work in this space.

[A]

Yes, you have.

[B]

That particular executive order actually directed the heads of every federal agency to take all of their statutes, their regulations, their anti discrimination provisions, and to expand summarily that term sex to include gender identity or transgender status, and for his rationale, relied heavily on Bostock versus Clayton County. Well, as we know, Bostock versus Clayton county was an education or an employment decision, not an education decision. Specifically, if an individual is fired as a result of their sexual orientation or gender identity, have they been discriminated based on sex? And the majority, in an opinion written by Justice Gorsuch, on whom all eyes are resting for this particular decision at hand, actually wrote an opinion saying, yes, but only because you have to consider sex first. In fact, he began the opinion with the understanding that Title 7 of the Civil Rights act of 1964. When enacted, the term sex meant male and female. So Bostock does not support the holding that the Biden administration argued for, but that was of no matter. And so all of the agencies created new regulations, the most pressing and applicable of which, for purposes of these cases, was on Title 9. That was a regulation created, finalized, and enforced in August of 2024, which preceded the election, obviously, of President Donald Trump. But in the interim, 11 different federal lawsuits were brought against the administration, and in 11 times, the Biden administration lost every single time. Nine courts enjoined, either permanently or on a temporary basis, the Biden era rule, and two others vacated, meaning threw it out entirely. So we went into August with a patchwork of states across the country in response to this. And I think seeing the writing on the wall, back in 2020 and 2021, Idaho and West Virginia, respectively, enacted Save Women's Sports Acts when they recognized that the Biden Department of Education would no longer act to protect biological girls, they did what the Constitution anticipates and protects their ability to do, which is legislate to protect their welfare of their own citizens. And in fact, Idaho and West Virginia were only 27 states to enact Women's Sports Protection Acts. It just so happens that their cases were the first to get to the Supreme Court. So remember, we are still dealing with the fallout of the gender identity juggernaut that was a hallmark of the Biden era administration. And so these state laws passed democratically, went through the appropriate process, were deliberated upon, debated on the House and Senate floors in the two states, went through the democratic process, were ratified, were immediately challenged by the ACLU for violations of the Equal Protection Clause and Title ix, respectively. Now will we get clarity from the Supreme Court on whether or not the Title 9 Biden era regulation was indeed legal and constitutional? No. It may appear, I think in one of the concurrences, Thomas may allege certain representations about how it was sort of extrajudicial and it did not have any basis in law. I can also see Justice Alito weighing in on the fact that it violated something called the major questions doctrine. But we are not going to see the Court deal with the legality of that regulation head on. They will only deal with the questions before them, which are does a state have a power to restrict men and women's sports based on biological sex without violating the 14th Amendment or Title 9? And I think after oral arguments, it's pretty clear to me that the answer will be yes.

[A]

Yeah, I think so. Because if it comes down to a 10th Amendment States rights issue on this front, you can look back at Scrametti and kind of read the tea leaves on how this is all going. We'll talk about that in a moment. Our guest today is Sarah Partial, Perry, vice legal fellow at Defending Education. We're talking about the two major cases in Idaho and West Virginia. The Supreme Court heard oral arguments on those of late. And it really boils down to the the key question we've been talking about for for some time, and that is women's and girls sports, whether schools must allow male athletes to compete on girls. So we kind of touched upon it before. But what do the recent cases inform us about where these cases will be going as the Supreme Court weighs all of this stuff?

[B]

Great question. You had mentioned the US vs. Scrometti decision. You know, we've seen not just in scremetti but also in the Dobbs decision language relative to leaving controversial hot buttoned political issues to the reasoned judgment of the legislative bodies where people can, through their elected representatives, debate and discuss these issues and can make the decisions that are most appropriately suited to the governance of their own citizenry. They do not want to get involved in questions on which state legislators have already spoken. In fact, in a decision dating back to the year 2000 and case called Cameron vs. EMW Women's Surgical Center, Justice Gorsuch actually wrote, a state's ability to defend its own democratically enacted laws should not lightly be cut off. And that's precisely what these transgender petitioners are asking for here. They are asking the Supreme Court to second guess what Idaho and West Virginia have done. Even though the states have benefited from the democratic process, the people have weighed in through their elected representatives in very much the same way. I would be very surprised if that merely verbatim language does not make an appearance in these issues here. And I think it goes to, I think strengthen the notion of our federalist system of government where it is the strict purview, According to Marbury vs Madison, of the judiciary, to say what the law is not to make the law or second guess the law of other states. And that is important. I think it is a home mark of the composition of this court. And I think we're likely to see that type of language in the majority opinion in the women's sports cases.

[A]

Well, that has been a constant theme over many years, but particularly in the Trump era. Courts making law, activist courts, activist judges. We've seen it time and time again. This issue is part and parcel of all of that. So on the other side of the coin, etc, the states that are have been and continue to be all trans happy, they want to see men in women's sports, girls and boys sports. This kind of thinking would suggest that they have a right to do whatever they want in their states. Correct? Not correct. Where do you see that falling?

[B]

That's a great question. And in fact I have had people ask me where I believe sort of this type of a decision, which we anticipate to be a victory coming down in terms of what we see state to state. And in much the same way that we saw post Dobbs, a bit of a patchwork of laws that either restricted or expanded access to abortion, as is the nature of the tenth Amendment, police power to regulate on things like health, safety, welfare, medical licensing, education. We may see the same thing here. Now there is one superseding question. Under the understanding of the Constitution's supremacy clause, federal law trumps state law when federal law would be frustrated, when the congressional aims of that body would be frustrated by contrary state laws. So Title IX stands apart from the equal protection analysis here. Now, California, for example, who takes a very trans inclusive approach not only to scholastic athletic, but to all aspects of public accommodations and education, accepts federal funding. They are under no obligation to accept federal funding through their commitment to follow Title ix. And in fact, I remember dealing with certifications from state educational associations every year. It is a qualification that in order to get your money from the federal government, you must covenant and sign a certificate saying, we will follow this cadre of civil rights laws within education. California is under no obligation to take federal funding, and for that matter, neither is Maine. And in fact, both states are embroiled currently with litigation through the Department of Justice. Why? Because the Department of Justice has said your laws run contrary to the plain text, statutory meaning and congressional history of Title 9. So it will be a very interesting question as to what happens next. Those states will not be able to to litigate their way out of a Title IX challenge. However, there is some question, based on what we heard in oral arguments, that Equal Protection clause may or may not be sufficient to bring challenges for individuals with blunted athletic advantage. How that sort of moves forward remains to be seen. I anticipate we will see one of two outcomes. An increase in legislation like Idaho's and West Virginia, where states finally feel sort of the moral fortitude to be able to say we've now got Supreme Court backing and we can indeed protect our girls and women because we have Supreme Court analysis as our legal cover. Or we will see an influx in creative new arguments from people like the Newsom administration or the Janet Mills administration to say it may violate Title 9, but it does not violate the Equal Protection clause. Because we are arguing as well, a subclass class of individuals might be allowed to play. That will be determined largely, largely by the rationale and the holding of the Supreme Court.

[A]

Fascinating. It takes me back in my time machine to the late 90s and what the definition of is is.

[B]

It's just I am also old enough to remember that.

[A]

Yeah. And you know who, you know who's old enough to remember Title 9 and the battles therein is Joe Biden. I don't know if he remembers anything at this point, but he certainly was around during the, the Title nine battles. And do you find it remarkable that we are at this point where really you are seeing a reversal of Title 9 through these policies that say men can participate in women's sports.

[B]

I am not surprised because when we saw sort of the parting shot from the Obama Obama administration through the Department of Education when Katherine Lehman was then Assistant Secretary for Civil Rights who parenthetically went on to also be Assistant Secretary for Civil Rights under Biden. So she said two kicks at the can to effectuate a incredibly progressive administrative aim of transing everything and transing all the things. One of his parting shots through Katherine Layman's office was to direct all of the state educational associations to open their bathrooms to transgender identified males regardless of what their biological sex was. That set the stage for what we saw as a further battle down the road. Now serving as I did in Trump 45, we did not spend as much time fighting the gender identity notion and clarifying sex based protections. Our work on Title IX was to clarify sexual assault and sexual harassment were forms of discrimination under Title ix and as I said before, clarifications based on free speech and religious education and their institutions, we now look back and see an opportunity to perhaps be missed in making sure we relegated specific federal regulations to the notion of a biological and sexed reality. But this was in the terminus vstok we received in the summer of 20. And then of course in the fall of 2020 was the election in which Biden won. So we really did not anticipate such a sea change in such a short period of time. I think recognizing what we've seen through the Biden administration and for heaven's sake, he appointed a man in address to chair the Department of Health and Human Services.

[A]

That's right.

[B]

So tell us again about biological reality and sex. I'm disheartened from the standpoint that as a parent of three children who have been through the public education system, I not only fight this in the public sphere, I've not only fought at the Department of Education and during my time as the senior legal fellow at the Heritage foundation and now as the Vice president and legal counsel of Defending Education. But this is something I have walked specifically. My daughter is benefiting From a Title 9 athletic scholarship playing D2 volleyball right now in college. And I'm thrilled of the gains that Title 9 line has allowed she and I to both achieve in our educations and those opportunities. I am, I think, flummoxed to this day on the silence of the first wave feminists. Those individuals, the Betty Friedan's and the Bella Absogs and the Gloria Steinems who told all of us that a woman needs a man like A fish needs a bicycle. And then when a woman's place on an athletic field is divested to a biological man, they have nothing to say. And I think as a woman, someone who would not classify myself as a feminist, but for whom textualist and originalist principles of legal interpretation have always applied, we have to be honest on what the progenitors of Title IX meant and what they anticipated. And some of the four speeches are absolutely astounding. Senator Birch Bayh of Indiana, who was one of the sponsors of Title ix, got up on the floor and talked about the fact that we were all familiar with the old adage that women were pretty little things who went to college to get an interesting husband and went to graduate school to get a more interesting husband. And those were the types of fallacies that Title 9 was enacted to fight against. And while there was lots of consternation between sort of left and right wing factions of the House and Senate, 250 versions of legislation went passed back and forth between those committees. Gender identity, transgender status never appeared once. So we recognize it was to protect women in 1972. When the Javits Amendments were passed in 1974, specifically on athletics, it was the sense of Congress then, after six days of hearings, that, yes, we meant what we said in 1972. We're not changing anything, we're just adding athletics. There have been multiple opportunities to expand, to revise, to amend. But I don't think this particular Supreme Court will take lightly the interpretation of federal law that is not supported by a directive from Congress. We all remember the watershed West Virginia vs EPA case and the Clean Air act shoved through that was instituting millions of dollars in costs passed off to the these CO2 producers and their companies and their corporate operations. One cannot pass, as the Justices wrote, a regulation of massive economic and political significance without clear congressional authority. It's clear the Biden administration did not have it then. I do believe that line of rhetoric will come up at some point in one of the Justice's concurring opinions. Here, here.

[A]

So Betty Friedan and the Gang, their New Virginia Slim slogan is, you've come along, not you've come a long way, baby. You've come a long way, buddy. For the trans movement in America, it appears to me what this is, this is perhaps an unfair question because you're delving in, you know, the legal aspects of all of this. But, you know, law is, is not in a vacuum. Politics surround it. What do you think the political ramifications of all of this will moving forward?

[B]

It's very interesting to me because the transgender lobby is a very small and vocal but well funded minority. And this is, as sports are concerned, an 8020 issue. In fact, the most recent IPSIS polling indicates that 65% of Democrats want sports separated by biological sex. That's in conjunction with Republican rightly leaning voters constitutes 80% of the American electorate. So the political consequences really should not be significant. But do I expect a great deal of howling, wailing and gnashing of teeth from the trans lobby? Undoubtedly. But what we see here is an opportunity for those individuals, if they are so keen, to play on athletic teams. And listen, as Kavanaugh mentioned, he is himself, by the way, a couple coach, has coached women's athletics for years, has multiple children of his own. He said, I hate the thought of a kid not getting to play on a sports team. I can't stand it. Well, here's an opportunity. If indeed these individuals will not play on teams associated with their natal sex, here's an opportunity to let the democratic process work, to go back into the state houses and to create a third category for whom biological males with blunted athletic advantage based on hormone suppression might be able to compete. And in fact, there is nothing in Title IX preventing the operation and application of co ed teams. The regulation specifically states. The regulation includes the opportunity, if there are not enough of one or the other, to mount a co ed team and to create co ed divisions, two opportunities for these children to go about and play athletics without feeling the sort of stigmatization of going into, for example, a team with biological girls as natal men. But I do not believe constitutional or statutory principles of interpretation require the 99 to bend the will of the 1. And that is exactly what we heard in colloquies with Justice Thomas, Justice Alito, and she, Justice Kavanaugh, when they said the law applies for 99% of individuals, you are asking us to create an exception. And both attorneys, both advocates for the transgender athletes, had to be honest and admit that, yes, that was precisely what they were asking for.

[A]

Interestingly enough, as we get ready for the Winter Olympics, you have the International Olympic Committee starting to get the fact that men competing in women's sports is a severe disadvantage for the women. And I, I hope they learned that lesson during the last Summer Olympics when we saw some. Some very awful things. You know, a biological male insisting that he was a woman in that boxing ring. I think that's the image that stays with me, just how badly beaten that young woman was. And I think that is an image that stays with A lot of Americans. So what. What do we expect in, in the United States when finally you have the, the Olympic Committee coming around to this, but you have so many politicians here who refuse to.

[B]

Well, that's a great reference historically, because I think the world stage watching Angela Carini be. Be hit as hard as she was by a main Khalif, who is a biological male, but has what's called a disorder of sexual development, a dsd, meaning he is still a biological male, but he did not develop naturally the way any biological male would develop. However, still stronger, faster, has greater punching capacity, wingspan, muscle capacity, muscle twitch response, bone density, city. The physiological advantages are myriad and so much research has been done. But the fact that we had to do this research before the International Olympic Committee went, okay, you know what we give. You're probably right. There's probably a disadvantage here. And I thank heaven for the female athletes like Serena Williams, like Martina Navratilova, who have come out and say, absolutely, I would never play with a man. Man. It's an unleveled playing field. It has taken that much public scrutiny, public controversy, and still to this day, Emain Khalif and his trainer refused sex verification tests until the very end, when everyone recognized, oh, look, exactly what we thought. He is a biological male with all the attendant advantages. But the fact that we had to get to that point, Matt, I think is where I find sort of the cultural schism here that the. Those purveyors of the notion of fungibility between sex and gender identity and the fact that one may identify different than their natal sex, and we as a culture have to go along with that self perception, an internal reality that is often malleable and changing from one day to the next. And I will drop a footnote here and mention the column colloquy between transgender attorney Chase Strangio during the Scrametti oral arguments and Justice Alito who put Strangio to a very hard question when he said, what if one day I'm a girl, the next day I identify as a boy, and what if the third day I identify as non binary?

[A]

Yes.

[B]

Is that an immutable characteristic? And by the way, immutability being that characteristic on which all of our equal protection questions hinge or sex, national origin and race. That was the question. It was the $64,000 question. And Chase Strangio for the ACLU, by the way, one of the attorneys who also tried to moot the case for Lindsay Hecox in the extant cases we're discussing said no. Justice Alito it is not immutable. Well, never in American civil rights jurisprudence, prudence, has the court recognized that someone's internal sense of their own reality requires the rest of American culture to facilitate it. And in fact, we would not, for example, facilitate an individual who, for example, was anorexic by withholding food or a bulimic by giving too much food, or schizophrenic by entertaining delusions. These are questions. And again, again, the American Psychiatric association for years, dating all the way back to the 70s, has identified gender dysphoria as a mental disorder in need of help. We would not, in any other context require the justices to turn the entire canon of equal protection law on its head to facilitate an internal reality. That is not something on which I feel think any lawyer worth their salt or any justice worth their robe would be willing to compromise on.

[A]

Yeah, that is a great, great point. I think that is that is the underlying point to, to all of this. This. And, and that's the thing. I think ultimately what we have here, you know, we talk about red states and blue states and Republicans and Democrats and liberals and conservatives. I think what is happening in America and what has been happening in America for some time now, is a battle between reality and insanity. And I think a lot of Americans, like you said, a lot of Democrats, see that certainly on this front.

[B]

So.

[A]

This is a huge issue that's taken a lot of your time. But I must ask, as we close, what's next for defending education? What is next for Sarah Partial PERRY.

[B]

Well, I will tell you that we are tracking three very interesting cases at the Supreme Court right now, two of which and a third, we are about to have submitted amicus briefs on two cases directly related to the constitutionality of so called gender secrecy plans for minors.

[A]

Yeah.

[B]

Parents who have had their children socially transitioned behind their backs, who have, as applied challenges for violation of their parental rights under the 14th Amendment. And a third that's coming out of the 9th Circuit in the state of California, Mirabelli versus Bontham or Bansa, and that is specifically requesting an emergency appeal to the Supreme Court to weigh in and halt the ninth Circuit's decision, staying a victory for the parents in the lower court, requesting that the justices take it up with the other two cases and finally clarify once and for all that hiding a minor's gender identity information, school administrators, teachers, those who hide that information, have directly interfered with that longstanding custodial right to direct the care and upbringing of one's minor children. At this point, Justice Alito, Justice Gordon Gorsuch Justice Thomas have not once but three times weighed in to dissents from denial of cert in similar cases, saying, we have come to the point where we cannot ignore this question any longer. Those cases are actually being considered within the next few days in conference. They have been reconsidered multiple times, as was the Dobbs decision, as was the Scrametti decision. My hope, if we're playing the numbers game game, is that it indicates the justices will finally take those cases up. And we have maintained for the better part of six years the only database in the country tracking the number of gender secrecy policies coast to coast. At this point, there are approaching 13 million children who attend schools with these express policies on the books. We are eager for the Court's resolution.

[A]

Very interesting. We are very eager to be following those cases. And we, we will here at the Federalist. All the good work, of course, being done at defending education. Isn't it sad that we live in such dull times?

[B]

Sarah, I will tell you, if you had asked me 27 years ago if this is how I would be applying my law degree, I would have laughed and said absolutely not. But this is the age in which we find ourselves.

[A]

Well, 27 years ago, you would have been laughing at a president asking what the definition of is is. But the more things, the more they say the same. Exactly. Thanks to my guest today, Sarah Partial Perry, vice president and legal fellow at Defending Education. You've been listening to another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections correspondent at the Federalist. We'll be back soon with more. Until then, stay lovers of freedom and anxious for the fray.

[B]

Sam.