Strict Scrutiny: "Will SCOTUS Keep Trans Kids Out of Sports?"

Podcast: Strict Scrutiny (Crooked Media)
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Date: January 19, 2026

Episode Overview

In this episode, Leah, Kate, and Melissa break down a highly consequential week at the Supreme Court, focusing especially on oral arguments in a pair of cases—Little v. Hecox and West Virginia v. BPJ—involving state bans on transgender girls and women participating in school sports. The hosts analyze shifts in legal doctrine, the stakes for sex equality, the underlying political strategies, and the possible fallout not only for trans kids and athletes but for broader coalitions advocating for equality. They close with discussion of other legal news, including opinions on standing and emergency aid, several notable dissenting opinions, and fresh chaos from the Trump administration.

Breaking News: Authoritarian Moves in Minnesota & DOJ

Key Points

• The Trump administration has taken extreme, arguably unconstitutional actions in Minneapolis after ICE shot and killed Renee Goode.
  • Constitution 'Functionally Suspended': Reports of ICE entering homes without warrants ([03:01]), brutalizing protesters, and racial profiling, violating basic constitutional protections.
  • Retaliation Against State Officials: DOJ has launched investigations into Minnesota’s Governor and Minneapolis’s Mayor for "interfering" with immigration enforcement.
  • Legal Analysis:
    • The federal government cannot compel states to enforce federal law (citing Prince v. United States and Justice Scalia) ([04:11]).
    • "If the federal government's theory is the state is obstructing enforcement of immigration law because the state isn't actively assisting our efforts...that doesn't fly under the 10th Amendment." — Leah ([04:11])
    • Moves are seen as political retribution, criminalizing political opposition—a hallmark of authoritarian regimes, enabled by SCOTUS’s recent immunity decisions ([06:02]).
  • Insurrection Act Threat: Trump signals possible invocation of the rarely used Insurrection Act to override state authority ([08:08]).

Notable Quotes

• “It is essentially a vindictive, malicious prosecution and investigation directed at an entire state, a political entity that is part of our constitutional system.” — Leah ([05:17])
• "The idea that you are criminalizing your political opposition is, of course, a hallmark of authoritarian autocratic regimes." — Leah ([07:18])

News on the Federal Reserve

Key Points

• DOJ is issuing subpoenas and investigating Fed Chair Jerome Powell; coming days before oral arguments in SCOTUS over presidential removal power.
• Perceived as presidential intimidation to force lower interest rates and punish Powell for refusing to acquiesce ([11:19]).
• Powell’s public response emphasizes the need for Fed independence and resisting political intimidation ([12:07]).

Notable Quotes

• “The threat of criminal charges is a consequence of the Federal Reserve setting interest rates based on our best assessment of what will serve the public rather than following the preferences of the President.” — Jerome Powell ([12:07])
• “It's so weird that he thinks that this court would be receptive to completely unfettering him.” — Melissa ([13:39])

Deep Dive: SCOTUS Arguments on State Bans for Trans Athletes

Cases

• Little v. Hecox
• West Virginia v. BPJ

Main Question

• Do state laws barring trans girls and women from school sports violate the Constitution or Title IX?

1. Advocacy and Argument Framing

• Plaintiffs’ Lawyers (Kathleen Hartnett, Josh Block):

  • Delivered skilled, strategic arguments.
  • Narrowed their asks: not seeking to abolish sex-segregated sports, but asserting these state bans are unjustified for their clients ([18:26]).

• Federal Govt.'s Lawyer (Hash Moopan):

  • Notably offensive, repeatedly used “biological male,” referred to gender-affirming care as “performance altering drugs,” and advanced sweeping, maximalist anti-trans arguments ([47:44]).

Memorable Quotes

• "Maintaining poise and having answers to all questions in the face of a hostile bench...potentially making headway in warding off some possible ways this opinion might go." — Leah ([19:25])
• “[Moopan] managed to be, I think, the most transphobic person in a courtroom where Sam Alito had the floor for almost four full hours.” — Leah ([19:46])

2. Strategic Legal Framing

• Recoding Equality:
  • Conservative legal strategy seeks to recast Title IX as requiring discrimination against trans people "in order to secure equality for women"—splitting feminist and LGBTQ+ coalitions, reminiscent of tactics used to attack affirmative action ([19:55]-[22:59]).
  • “The conservative legal movement has worked for years to undo the civil rights gains of the last half century...Instead, what they're doing is finding a third group to fracture the feminist coalition. And the group is trans people.” — Melissa ([19:55])
  • Linked-fates argument: Coalition solidarity is key as the Court tries to drive wedges between women's rights and trans rights ([22:59]-[23:21]).

3. Facial vs. As-Applied Challenges

• Discussion over whether plaintiffs can bring as-applied equal protection claims or if such challenges are barred or limited for sex discrimination.
  • Concern: Court’s inconsistency, especially favoring as-applied challenges for First Amendment cases involving conservatives but not in equality cases ([23:24]-[30:08]).
  • “The idea that they're going to carve out an exception for equal protection claims on sex discrimination because they really think discrimination against trans people is okay is, I think, so damning.” — Leah ([27:46])

4. Limiting Principles and Broader Impact

• Democratic appointees on the bench acknowledged, often openly, that they see likely defeat for trans athletes and tried to reason through what principles might contain the ruling’s damage ([30:48]).
• Justice Kagan—“If we didn't want to prevent a different state from making a different choice from West Virginia, what should we not say, or what should we say to prevent that from happening?” ([30:48])
• Discussion of possible narrowing—will Court craft a holding that allows for state-by-state variance, or go broader ([31:17]-[34:29])?

What's Next If States Win?

• Concern that upholding these bans would effectively dilute equal protection standards and enable a rollback on broader sex equality jurisprudence.
  • “It would seem that by upholding these laws, the Court would be watering down the standard applicable to sex discrimination…” — Leah ([31:17])
  • Title IX/Equal Protection may not only permit bans, but be interpreted in the future to require exclusion of trans athletes ([32:50]-[35:51]).

5. The Extreme, Maximalist Right Position

• States' counsel tried to portray their position as moderate (“...we’re not saying all states must ban trans athletes”), while DOJ (Moopan) signaled eagerness to go further—coming for inclusive states next ([35:07]).
• “The federal government is signaling pretty clearly, hold my beer, folks. Once we win this case, we’re coming for all of the 23 states that still allow these athletes to play.” — Melissa ([34:46])

6. Absurd Hypotheticals & Transphobia Contest

• Justice Alito, Justice Thomas, and Hash Moopan took turns posing “gotcha” scenarios based on misleading assumptions of "fraud" or "counterfeiting" of gender identity ([43:50]-[46:41]).
  • “...serving up what I think he thinks is a gotcha question for Kathleen Hartnett about all the many boys who announce that they are trans purely to get on the girls team as one does.” — Melissa ([43:50])
• Moopan described gender-affirming medication as "performance altering drugs" ([47:44]).
  • “Who the fuck takes estrogen as a performance enhancing drug to play better tennis?” — Kate ([47:51])
• Subtexts of the argument suggested that all or most trans identity claims are attempts at fraud—a damaging narrative with echoes in prior anti-LGBTQ+ and anti-DEI discourse ([46:00]-[48:13]).

7. Dissenting Tone and Prognosis

• Justice Kavanaugh and others expressed “regret” and handwringing about the harm the ruling could do—despite supporting exclusion ([50:01]).
  • “I hate, hate that a kid who wants to play sports might not be able to play sports. Hate that. But it's kind of a zero sum game…" — Kavanaugh ([50:01])
• Advocates for BPJ countered that not all sports opportunities are zero-sum and that win-win solutions exist ([51:03]).
• Gorsuch entertained—but did not endorse—the idea that transgender people are a “discrete and insular minority” deserving heightened scrutiny ([53:05]).
• Prognosis: Likely SCOTUS endorsement of state bans, with an outside chance that equal protection questions are remanded for further fact-finding ([54:30]). Melissa warns that the Court may go even farther ([56:06]).

8. Transphobic Backlash: Academic & Social

• Recent case: Conservative pressure forced Arkansas law school to rescind the deanship of a professor who supported trans rights ([57:16]).
• “Right wingers seem to have preemptively ousted the recently announced dean designate…after receiving feedback from key external stakeholders…” — Leah ([57:16])

Other Legal News

Standing and Elections: Bost v. Illinois State Board of Elections

• The Court found candidates can challenge election laws if they claim injury from rules like late-arriving mail-in ballots ([68:39]).
• Broad new "what’s it to you?" standard for standing, quoting Scalia: “A plaintiff asserting an injury must...be able to answer a basic question, what’s it to you?” ([70:31])
• Justice Jackson’s dissent: Court is creating “status-based” standing for certain plaintiffs (candidates, corporations), while denying access to those harmed by abuse, discrimination, or police violence ([71:05], [73:55]).

Emergency Aid and Warrants: Case v. Montana

• Unanimous decision affirming that officers entering a home in an emergency requires an “objectively reasonable” belief of danger ([66:58]).

Interstate Immunity: Galette v. New Jersey

• Complex arguments over whether New Jersey Transit is immune as an “arm of the state”—tied to Biden v. Nebraska loan case ([61:39], [62:36]).

Other News

• Notable GVR (grant, vacate, remand) in Zalinsky v. United States—affirmative defense for a mother fleeing to protect her son ([80:10]).
• Trump judicial appointee analysis shows a 90% rate of siding with the administration ([82:43]).

Notable & Memorable Quotes (w/ Timestamps)

• “If the federal government's theory is that the state is obstructing enforcement...because the state isn't actively assisting...that doesn't fly under the 10th Amendment. The federal government cannot require state executives to enforce federal law.” — Leah ([04:11])
• “It is essentially a vindictive, malicious prosecution and investigation directed at an entire state…” — Leah ([05:17])
• “Title IX as requiring discrimination against trans people in order to secure equality for women—that's the new sex equality.” — Melissa ([19:55])
• "How can it be that trans women and girls are such a big group that it's super unfair to cis women to allow them to play sports, but not so big that they can raise as applied equal protection challenges? Riddle me this." — Leah ([28:39])
• “If you think this is just about, quote, protecting women and there are no costs to sex equality, you’re delusional...If you think our fates are not intertwined here, you’re really missing the boat.” — Melissa ([21:59])
• "Who the fuck takes estrogen as a performance enhancing drug to play better tennis?" — Kate ([47:51])
• "A public office is a public trust, and an election for that office is the ultimate expression of the will of the people, not a mere competition to be won or lost.” — Justice Jackson dissenting ([75:34])
• "The idea that you are criminalizing your political opposition is, of course, a hallmark of authoritarian autocratic regimes." — Leah ([07:18])

Timestamps for Critical Segments

• Authoritarian Moves & MN ICE Actions: [03:01] – [09:08]
• Federal Reserve/DOJ Targeting Powell: [11:19] – [14:25]
• Trans Athlete Arguments — Opening Observations: [17:55] – [19:46]
• Recoding Equality Discussion: [19:55] – [22:59]
• Facial vs. As-Applied Challenge Debate: [23:21] – [30:08]
• Limiting Principles—Justice Kagan: [30:48]
• Discussion on Federalism and Maximalism: [34:29] – [35:58]
• Chess Hypothetical/Biological Determinism: [36:39] – [39:55]
• Transphobia/Tone at the Lectern: [43:50] – [48:13]
• Standing – Bost v. Illinois State Board of Elections: [68:39] – [78:44]
• Jackson’s Dissent on Democracy: [75:34] – [79:19]

Tone & Style

The hosts maintain their signature blend of incisive legal analysis and irreverent, sometimes biting humor. They are direct about the dangers they see in current trends, sharply critical of both legal reasoning and its human consequences. Their style is engaging, sometimes exasperated, but deeply knowledgeable and committed to advancing understanding of legal threats as well as resistance.

Wrap-Up: Takeaways

• The Supreme Court is poised to permit (and perhaps even require) state exclusion of trans girls/women from sports—risking not only harm to trans youth but long-term erosion of established sex equality doctrine.
• The right’s strategy of pitting marginalized groups against each other (affirmative action, trans exclusion) is about fracturing coalitions and weakening civil rights.
• Current events—from ICE in Minneapolis to the politicization of the Fed—highlight the broader stakes of SCOTUS decisions enabling executive overreach and targeting political opposition.
• The “what’s it to you?” standing doctrine threatens to open new litigation by favored plaintiffs while shutting the courthouse door to the marginalized.
• The hosts urge vigilance, solidarity, and continued attention to both the nuances of doctrine and the human stakes.

[Produced by Leah Litman, Melissa Murray, and Kate Shaw, Strict Scrutiny is a Crooked Media production.]