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- [00:00]
John Bickley
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- [00:29]
Justice Alito
Terms.
- [00:33]
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- [00:41]
John Bickley
Was the scene outside the U.S. supreme Court Tuesday, when the justices heard arguments on two landmark cases being considered together, the ACLU versus West Virginia and Idaho's Little versus Hecox. Both cases center on the question of whether states can enact laws to protect girls and women's sports by barring males from competing in them.
- [01:00]
Sponsor/Ad Voice
Pro transgender activists argue that it's discrimination to keep men who identify as women out, while the pro women's sports side argues that common sense, science and Title IX and the Constitution are on their side. While not all oral arguments and cases offer fireworks, several moments from Tuesday's session went viral, including when the pro transgender side failed to define what makes a boy or a girl.
- [01:24]
Justice Alito
We do not have a definition for.
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Sponsor/Ad Voice
The court, and when Justice Brett Kavanaugh made clear that sports are ultimately a zero sum game.
- [01:31]
Justice Kavanaugh
And I think we have to recognize on both side the zero sum. It's not like, oh, just to add another person to the team. That's not how sports works. It's someone else that's going to get disadvantaged.
- [01:43]
John Bickley
In this episode, Alliance Defending Freedom's Kristen Wagner joins us to discuss the key moments from the arguments and why women's sports advocates are feeling more energized than ever. I'm Daily Wire Executive Editor John Bickley with Georgia Howe. This is a special Legal Wire edition of Morning Wire.
- [02:00]
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- [04:03]
John Bickley
Joining us now to break down what we heard in oral arguments this week is Alliance Defending Freedom President and CEO Kristen Wagner. Kristen, good to see you again. Thanks for coming on.
- [04:12]
Kristen Wagner
Nice to see you. Thank you for having me.
- [04:14]
John Bickley
So this was a massive week for women's sports. We at the Daily Wire were on the ground there outside the Supreme Court. It was pretty remarkable sight. There was the pro women's sports advocates, there were the transgender activists. There were snipers positioned there to protect people. It was intense. But there was also a lot of optimism from the pro women's sports side coming out of this. In fact, let's start there before we talk through some of the highlights. Big picture, what was your takeaway from how the justices responded to both sides.
- [04:44]
Kristen Wagner
Of the cases, I'm optimistic about how the justices will rule. I do think that they will rule to uphold equal opportunity and fairness and safety for women. And that's thrilling after such a long time of not having it on the field.
- [04:57]
John Bickley
Now there are 27 states that have protections for women, 23 do not. They often actively force schools to accept boys and girls sports. So major ramifications for every single state, of course. Briefly, if you would, can you summarize these two cases for us? First, they're being argued together because they're effectively the same case. And in both cases, the state's attorneys general are defending the state's laws and ADF is helping them do so. What do listeners need to know for context here?
- [05:28]
Kristen Wagner
Alliance Defending Freedom has been representing female athletes for the better part of 10 years. Some are in states that are protecting women and others are in states that are violating their rights. What the issue was before the Supreme Court yesterday involved whether states have the right to protect women, women's equal opportunities on the playing field. So it's the 27 states and whether states can proactively do the right thing. In terms of the 23 states, we heard at or arguments, some discussion about the justices kind of thinking ahead, what comes next and how will this ruling play out in those other cases as well?
- [06:04]
John Bickley
And in terms of the two states, what are the two laws that are being defended here?
- [06:09]
Kristen Wagner
Essentially, they are Fairness and Women's Sports act, or Save Women's Sports Act. They have different names, but they're all focused around ensuring that male athletes are not playing in the female category. And that can occur both at the collegiate level, but also we can think of high school and middle school levels. There are two laws that are in play, one from West Virginia, one from Idaho. We have the privilege of standing alongside the West Virginia and Idaho attorneys general as they defended their laws. But we also represent three female athletes in these cases. And two of those athletes had to play multiple times or had to run against a male athlete multiple times. And that male athlete actually took the Big Sky Championship away from another deserving female athlete. We also represent Lainie Armistead out of West Virginia, who went to school on a scholarship. And under Title ix, there are a finite number of scholarships that you can get. And so every time one of those scholarships goes to a man in the women's category, a deserving woman doesn't get that scholarship.
- [07:12]
John Bickley
Brian. So let's get to the highlights from Tuesday. A lot went on, we said at the top of the show, a lot of oral Arguments don't go viral, but that's not the case for what we heard on Tuesday. A lot of moments really made the rounds online. What were some of the moments that you felt really defined Tuesday's session?
- [07:30]
Kristen Wagner
First and foremost, it was just how the ACLU was running away from their own arguments that we've been litigating in the past 10 years. They are scrambling as fast as they can because they don't make sense. And even the lower court decision below, out of the fourth Circuit Court of Appeals in the, in the West Virginia case, they basically acknowledged the 4th Circuit got that wrong. They didn't even try to defend it. They also, also refuse to define what sex is. And if you're unwilling to define what sex is, it makes it awfully hard to prove sex discrimination, which is what these arguments hinge on.
- [08:07]
John Bickley
Right. I want to tee up that moment. It actually is pretty remarkable. You can feel it in the courtroom, a sense of shock with the follow ups from the justices.
- [08:14]
Justice Alito
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.
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Justice Kagan
Well, how can you, how can a court determine whether there's discrimination on the basis of sex without knowing what sex means?
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Kristen Wagner
You could almost hear a pin drop in the courtroom when the ACLU refused to acknowledge what a woman was, refused to define what a woman was. And it was a very important moment that Justice Alito took the advocates through. One, to highlight the fact that they weren't willing to define it, but two, in certain parts of the argument, they actually did say, we're not challenging the difference between male and female. And so then Justice Alito took them through and said, well, then essentially, what are you challenging? What is the issue? Because the law protects against sex discrimination. And, and in the end, you can hear the advocate say that essentially they're the ones that are willing to engage in discrimination on the basis of gender identity because they're saying, well, it's good enough if you take testosterone suppressants and puberty blockers, you should be treated as a woman. But if you self identify and you haven't taken those steps, then you can't be treated even if you identify as the opposite sex. So I think Justice Alito is Highlighting in that exchange that kind of the incongruity of the arguments. You can't have it both ways.
- [09:49]
John Bickley
Related to that, one of the moments that stood out to me was when the ACLU attorney acknowledged that it's not actually bigoted to recognize the differences between men and women. How do you see that in terms of legal arguments?
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Kristen Wagner
Well, in court, the ACLU has acknowledged that they aren't going to call those of us who believe in the male and female categories as bigoted. But if you stood outside on the court steps like Daley Wire did, I'm sure that you were hearing some names being called. We know what's going on in the public square, but the decorum of the court is such that you can't make those allegations. Justice Alito was right to bring it out and to call it out and to again, just reaffirm that these categories mean something. Another interesting aspect of the case is that, you know, they essentially claim there should be special exemptions, special treatment rather than equal treatment. And the equal protection clause requires equal treatment. And so I think you could hear Justice Alito getting into those questions to also demonstrate to the rest of the court that there is equal treatment here and that treatment is between the sexes, which is what matters.
- [10:54]
Justice Kagan
All right, suppose this school that has a boys, let's say, track team and a girls track team. The school has that and a student.
- [11:09]
Kristen Wagner
Who.
- [11:11]
Justice Kagan
Has the genes and the reproductive system of a male and had those at birth and has never taken puberty blockers, never taken female hormones, never had any gender altering or affirming surgery, says, nevertheless, I am a woman. That's who I am. Can the school say, no, you cannot participate on the girls team.
- [11:45]
Justice Alito
Sorry, so you're just a birth sex male who has all the advantages of sex male hormones, and can the school borrow him from the woman's team? Yes, they can.
- [11:53]
Justice Kagan
But that person is that person not a woman in your understanding? If the person says, I sincerely believe I a woman, I am in fact woman, is that person not a woman.
- [12:05]
Justice Alito
I would respect their self identity in addressing the person. But in terms of the statute, I think the question is, does that person have a sex based biological advantage that's going to make it unfair for that person to be part of the women's team. And that's the rationale for the regulation. And so that's the way we'd be testing that hypothetical.
- [12:21]
Justice Kagan
Well, the reason I'm asking has be to to do with discrimination on the basis of transgender status. So what you seem to be saying is, yes, it is permissible for the school to discriminate on the basis of transgender status.
- [12:33]
Kristen Wagner
There's great irony in that. The ACLU just launched its campaign called More Than a Game, which is supposed to continue to push on resisting biological reality on the playing field. And it was clear that Justice Kavanaugh understood what that meant in the courtroom as he laid out for the advocates that this is essentially a zero sum game. And it's not just about trophies or podium spots, but about whether girls can even make the team, whether they even get on the roster and how much that matters to them.
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Justice Kavanaugh
It's kind of a zero sum game for a lot of teams.
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Sponsor/Ad Voice
And.
- [13:10]
Justice Kavanaugh
Someone who tries out and makes it, who is a transgender girl, will bump from the starting lineup, from playing time, from the team, from the all league. And those things matter to people big time. Will bump someone else. And so one way to resolve it, as you say, is the facts. Try to figure out is there really a competitive advantage. I think we're going to get a lot scientific uncertainty about that, a lot of debate about that, a lot of different district courts the other way on the law. One way on the law is, okay, well, sex in Title IX and in Javits meant biological sex. And it's up to Congress to adjust that going forward if they want, given, as you say, and your co counsel said earlier, you know, people are learning more about this and maybe there really is no advantage. Well, if that's true and some states are operating under that basis, that's the way to go. But for now at least, the loss is biological sex. And I think we have to recognize on both sides the zero sum. It's not like, oh, just to add another person to the team. That's not how sports works. It's someone else that's going to get disadvantaged. So I just want you to address that.
- [14:28]
Kristen Wagner
That was the one moment where we heard something about the girls that are impacted. And I was thrilled to hear it. But I hope that the rest of the justices understand what's at mistake.
- [14:37]
John Bickley
Now, there was some concern raised from the right side of this argument, the pro women's sports side, about the language that the justices used, left wing gender identity language to be specific. Here's some of that impact.
- [14:50]
Kristen Wagner
I, I understood you to say that it would be by checking testosterone levels because it would be okay to say to Justice Alito's hypothetical about the cisgender male who has taken no steps and who is now trans, to exclude that person.
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ACLU Attorney
All the scientific evidence showed that there's no difference between Cisgender girls and trans girls. I know there's a fight for cisgender girls.
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Kristen Wagner
They can play consistent with their gender identity.
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ACLU Attorney
For transgender girls, they can't.
- [15:24]
John Bickley
What did you see there? Were they trying to present the arguments in the language of the ACLU to sort of be fair, or was this really the court buying into some of this gender identity language?
- [15:35]
Kristen Wagner
I've sat through a lot of arguments. We've had, you know, 20 cases before the court in the last 10 years, and I have to say that was probably one of only maybe two times that I have been deeply disturbed by some of what I heard. And I'm not going to speculate as to why the justices were using the left's language, but it was ideologically loaded, and. And they may be trying to just make sure that those who are in the courtroom feel like they are respected and getting fair treatment. But the court is a court of precision. It's a court of words. And so when you refer to a cisgender girl as if that's something different than a girl, I think that that sort of gives away the argument in some ways. We have to get back to a place where we are looking at men and women, and. And if we're talking about those who identify as the opposite sex, then we say that it's men identifying as women. But there's no such thing as a cisgender girl, and there's no such thing as a transgender girl.
- [16:37]
John Bickley
Like you said, in the end, you're seeding the entire argument. If you seed the language, though, maybe we shouldn't read too much into this. That said, the questions from the judges were clearly leaning very heavily to the pro women's sports side. Were there any other patterns that you witnessed on Tuesday that stood out to you?
- [16:54]
Kristen Wagner
I wouldn't read too much into the language, but I do think that it's important we continue to insist on biologically correct terms. And what I didn't hear in the courtroom, that really just struck me as being so disappointing. I didn't hear about the women. And actually, it didn't disappoint me. It angered me. I wanted that. It's probably the first time I wanted to stand up and shout, what about the women? Not just the women in this case, but the male athlete in West Virginia displaced 423 girls 1100 times and took 57 medals away from them. Five girls protested from another team, and in their protest, they were punished by their school. Their school didn't stand up for them. And then, of course, we have adelaia Cross, who was on the team and suffered sexual harassment and even threats in the locker room. And we have the UN study that says 900 medals were taken in competition as well. So there was so much focus on what the ACLU was saying, a boy who identifies as a girl who wants to play sports, but no focus on the rights of women. And we should not have to surrender our rights because a male is identifying as a woman.
- [18:08]
John Bickley
What about, particularly from the progressive side, the left wing side of the court? Were there any questions from that side that you were encouraged by in terms of the pro women arguments?
- [18:19]
Kristen Wagner
I think there was general consensus that males have an advantage over women. And so I was encouraged that Justice Kagan, as an example, was grappling with what the argument was of the ACLU in terms of under the Equal Protection Clause, how they would actually prove without completely messing up the constitutional standards that are already in place.
- [18:41]
ACLU Attorney
We often say as applied challenges are the preferred mode of constitutional adjudication. Certainly we have not erected like bars to them in any other area, as far as I understand it. And then in equal protection law, we say all the time things like people need to be treated as individuals and not as. Just as members of a group. And I'm wondering whether both of those principles don't suggest that anybody bar on equal protection as applied equal protection challenges is just wrong. Is off. And then the second thing I want you to do after you do that is assume for me that there is such a thing and to tell me how, in your view, an as applied equal protection challenge ought to work in this case.
- [19:35]
Kristen Wagner
Essentially what the ACLU is arguing under the constitutional argument is for an individualized analysis and an individualized level of scrutiny that requires a perfect fit. So I don't want to go too deep in the weeds on that, but that would be impossible. That would mean every time the state passes a law, if someone could demonstrate that the reason for that law doesn't apply to them, they likely would have a constitutional argument under the Equal Protection Clause, which is, you know, absolutely crazy.
- [20:05]
John Bickley
Yeah. Wouldn't this ultimately require genetic testing and all kinds of rigorous ways of assessing somebody's particular attributes and qualifications at any given moment? Is that what this would devolve into?
- [20:16]
Kristen Wagner
Yes, because they are saying you take in into account all of these different attributes, and of course it muddles the meaning of sex. If, if it's impossible to define sex, we need to understand that's going to affect a whole host of laws and frankly, all of Western civilization. If we are denying the created order and biological truth and the fact that there are legitimate differences between men and women, and that's truly what's at trial in this case, is whether those differences can be taken into account by states. The answer has to be yes, that they can.
- [20:50]
John Bickley
To wrap up here, you mentioned that the girls that are at the center of these cases were not mentioned on Tuesday. So let's close out by talking about them. You've been in close contact with them. How did they respond to the events of Tuesday?
- [21:03]
Kristen Wagner
They were thrilled. We had a wonderful gala that you were at, even where we brought the whole movement together to just celebrate what had happened and the milestone that was created and giving them a chance. And we had probably three dozen girls who came to the stage who were litigants in the case in different cases along the way who have stood for their rights and they have suffered as a result, not just on cancellation or censorship, but real tangible penalties. I think they were disappointed not to hear more about those who are experiencing this in the courtroom, but outside the courtroom, they did everything they could to have their voices heard.
- [21:42]
John Bickley
It was truly powerful to see all of them on stage together. Took a lot of courage for them to speak out. And now we have the Supreme Court finally considering their arguments. Kristin, thank you so much for joining us.
- [21:55]
Kristen Wagner
Thank you.
- [21:56]
John Bickley
That was Kristen Wagner, president and CEO of Alliance Defending Freedom. And this has been a legal wire edition of Morning Wire.
- [22:04]
ACLU Attorney
Foreign.
- [22:10]
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