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The Supreme Court heard arguments today in a pair of cases involving transgender athletes challenging state laws that ban them from participating in girls school sports. The issue has become a national cultural flashpoint.

Will K. Back (6:39)

During oral arguments on Tuesday, the Supreme Court appeared likely to uphold state laws banning anyone other than biological females from participating in women's and girls sports. In West Virginia vs BPJ, the mother of a transgender girl brought a challenge to estate law in West Virginia in Little vs. Hecox, a transgender woman wishing to compete at the college level challenged in Idaho law. Together, the legal challenges claim transgender status is protected against discrimination by the 14th Amendment's equal protection clause and Title IX, a federal law that prohibits sex discrimination in programs that receive federal funding. Although the justices are expected to rule similarly in each case, the court is considering the challenges separately. In 2021, West Virginia enacted the Save Women's Sports Act, a statute barring students who are biologically male at birth from participating on girls and women's sports teams in public secondary schools and colleges. The mother of BPJ, a now 15 year old girl who has publicly identified as female since third grade, challenged the statute when she learned the law would prevent her child from participating on girls teams in middle school sports. A district court granted BPJ a preliminary injunction to compete while litigation continued, eventually siding with the state. Upon appeal, the 4th Circuit Court ruled against West Virginia, and the state appealed that decision to the U.S. supreme Court. In 2020, Idaho passed the Fairness in Women's Sports Act, a law that categorically barred transgender women and girls from competing on women's and girls sports teams at all educational levels. Lindsay Hecox, a transgender woman and Boise State University student, along with an anonymous high school athlete concerned about invasive sex verification procedures, challenged the law in federal district court, which temporarily blocked the law. The ninth Circuit affirmed that injunction on constitutional grounds, and Idaho appealed that ruling to the Supreme Court. During oral arguments, a majority of the justices indicated reluctance to find that either law violated the plaintiff's legal protections. Most of the arguments in Hecox and BPJ centered on whether the law discriminated unfairly against transgender women on the basis of sex, as well as the kind of challenge plaintiffs were bringing to the court in questioning the court's majority seemed skeptical that the plaintiff could object to the law as it applied to her without demanding the state tailor the law specifically for them. The court's three liberal justices offered questions that appeared sympathetic to the plaintiff's challenges. In a line of questioning to Idaho Solicitor General Alan Hurst, Justice Sonia Sotomayor said the Idaho law could create, quote, a subclass of people who are covered by the law and others are not, end quote, implying a violation of the 14th Amendment. Today, we'll break down what the right and left are saying about these cases. Then Associate Editor Audrey Moorhead gives her take.

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Will K. Back (12:03)

Here's what the right is most on the right Expect the court will uphold the state laws arguing the challengers cases are thin. Some worry that the decision may be closer than expected, and others say the court has an opportunity to set a strong precedent. In national review, Dan McLaughlin said the Supreme Court seems ready to let states ban men from women's sports. The highlight of the argument came when Justice Samuel Alito got attorney Kathleen Hartnett to concede that she didn't even have a definition of what a man or a woman is, McLaughlin wrote. This is a disastrous answer, and the audio shows how fumbling Hartnett was in navigating this exchange. Title IX uses the term sex. You can't bring a Title IX case without some idea of what the key statutory term means. The same is true for invoking the 14th Amendment's case on sex discrimination, which has its own standard of review. And you can't ask schools and sports leagues to avoid discriminating on the basis of a line if you can't even tell them what the line is. A key problem for the challengers is that they were reduced to contending that a policy that is non discriminatory toward 99% of the people it applies to can nonetheless violate intermediate scrutiny on an as applied basis toward a small subset of of transgender athletes, McLaughlin said. But intermediate scrutiny has never required that a policy be perfectly tailored to avoid gender unfairness toward anyone. In the Federalist, Brecken F. Theise criticized Justices Gorsuch and Barrett's approach to oral arguments. Gorsuch's major contribution to the Tuesday oral arguments thus far was relatively early on, when he suggested that people identifying as transgender should be considered a discrete group given the history of de jure discrimination against transgender individuals in this country. The justice essentially asked whether those who claim to be transgender should be a legally protected class, thies wrote. This really comes as no surprise for Gorsuch, who authored Bostock vs Clayton county, which essentially invented a protected class for those claiming to be transgender with regard to Title VII workplace discrimination. Despite Barrett's writing on the issue in Tuesday's oral argument, she consistently referred to boys claiming to be transgender as trans girls and the like. Barrett also suggested that prepubescent boys have no physical advantage over prepubescent girls, Theise said. While the current Supreme Court majority ruled in favor of allowing state bans on the medical industry side of the transgender debate, the issue of sports and Title IX could end differently. In Fox News, Madison Kenyon and Mary Kate Marshall wrote, we were college athletes. The Supreme Court must listen to our case and save women's sports. Each of us spent a lot of our growing up years training our minds, straining our bodies and gaining the skills to compete against other girls and women on the athletic field. We worked hard, forfeited a lot of fun and family time, and steadily disciplined ourselves to become better, faster and stronger, to win those trophies, stand on winners platforms and earn scholarships that could pay for our higher education, kenyon and Marshall said. Then something happened that we had no way to predict or prepare for. Seemingly overnight, our country's athletic leaders decided that men could be women, that men had every right to compete in women's sports, and that physical differences were irrelevant, DNA was unimportant, and anyone could be anything they wanted to be. More than 50 friend of the court briefs have been filed in these combined cases by women's rights groups, female athletes, scientists, dozens of other advocacy groups, 27 states and the US government, all asking the justices to allow enforcement of state laws that protect women's sports, kenyon Marshall wrote. Now the Supreme Court will finally be able to clarify what the law already recognizes and so protect the rights not only of female athletes, but of all Americans who embrace biological reality and the simple truths of nature. Now, here's what the left is saying. The left also expects the court to side with the states and to deal a significant blow to transgender rights. Some say the stakes of the case extend beyond sports participation. Others criticize the rights targeting of the transgender population. In Vox, Ian Millhiser said the Supreme Court seems poised to deliver another blow to trans rights. Few of the justices appeared interested in the trans plaintiff's strongest legal arguments, and a surprising amount of the justices questions focused on a genuinely novel and difficult issue that then most of the justices appeared likely to resolve against trans athletes, millhiser wrote. To prevail in HECOX or bpj, the plaintiffs must do more than show they are the victims of sex discrimination. Their best argument is that the Constitution also prohibits public schools from discriminating against people because they are transgender. But only Justice Neil Gorsuch showed much interest in that argument. Given that Roberts and Gorsuch are the only Republican justices who have supported trans rights in the past, it's hard to imagine the court voting in favor of trans athletes without these two justices votes, millhiser said. It is very likely, in other words, that Hecox and BPJ will end in a major loss for trans rights the justices who heard these cases appeared to fixate on a question that the court has not yet answered. Can a gender based discrimination plaintiff challenge a state's decision to classify them as male or female? And most of the justices appeared inclined to resolve that question in a way that does not help trans athletes. In Aaron in the Morning, Aaron Reed suggested the court's ruling could impact all trans rights. While it may be tempting to view these cases as narrow disputes over sports participation, their potential impact extends far beyond athletics. Unlike Scarmetti, where the court framed the issue as one of age classification and medical regulation, a characterization many transgender rights advocates strongly dispute, these cases more directly confront whether transgender people are entitled to equal protection under the law, reid wrote. While lower courts have ruled in favor of transgender people, there is a new push to deny transgender people any protections whatsoever. One argument being advanced by the far right is that Title IX not only allows for discrimination against transgender people, it mandates it. Such a ruling would mean that schools and colleges across the United States could discriminate against transgender people in education, not just in school sports, but in bathrooms, locker rooms, dormitory housing and even admissions policies, reid said. When it comes to equal protection, the consequences could be even more dire. If the court rules that transgender status is not subject to heightened scrutiny and that discrimination against transgender people does not constitute sex discrimination, it would open the door for nearly any law targeting transgender people to be deemed constitutionally permissible. And in USA Today, Nancy Armour argued bans of transgender athletes are about erasure, not fairness. The Supreme Court can issue rulings in a million cases, but it won't make transgender people disappear. That's what this is about, not who gets to participate in sports or protecting women or preserving Title 9, Armour wrote. Erasure, permanently removing transgender women from every social space. So bigots and people who don't care to be educated no longer have to look at or think about a group of people they don't understand or who make them uncomfortable, all while making women adhere to a prescribed idea of femininity. The transgender girls and women who participated in sports were doing so for the very same reasons as other girls and to have fun, to play with their friends and to benefit from life lessons. Sports providers no one is forcing kids to transition. Transgender people aren't lurking in the bathrooms waiting to assault people. Transgender women athletes aren't stealing trophies and opportunities from other women en masse. All they want to do is exist. All right, that is it. For what the right and left are saying, I'm going to pass it over to associate editor Audrey Moorhead to read her take. And we have a few dissents today to share as well. Audrey, over to you.

Audrey Moorhead (21:09)

Okay, so that's it for what the left and right are saying. Which brings us to my take. Whenever trans issues end up in the news, my overwhelming reaction is just frustration. Frustration at the challenging issues themselves, sure, but above all, frustration at the way both sides talk around each other. Typically, the right is broadly skeptical of modern concepts of gender identity and the associated social changes that trans activists advocate for. I see the right as primarily concerned with ontological questions, that is, questions about definition and category. The right wants to know what is sex? What is gender? What is it to be a man or a woman? And those on the right who are asking these questions want rigid, definable answers whose principles can be strictly applied in law and policy. Defining sex based on material reality, like sexual organs or chromosomal differences offers those answers even though it creates unsatisfactory classifications for some. Typically, the left is broadly supportive of more personally tailored concepts of gender identity and advocates for the public accommodation of these concepts. This view eschews rigid definitions and allows for the possibility that an individual, despite having traditionally male sex organs, can actually be a woman and vice versa. The guiding principle is lived experience and gender expression. Matching gender identity is critical to affirming lived experience. Of course, it should go without saying that many people on the right and the left don't have honest intentions like the ones I just laid out. Some on the left will point to cases of anti trans hate crimes as proof of the Right's bad intentions, while those on the right point to cases where individuals claimed trans identity in order to abuse women in women's spaces as proof of the Left's bad intentions. But I think the existence of some bad intent on one side or the other doesn't and shouldn't condemn the whole side. I think we would all do well to remember that on this issue. Those on the right and left alike are all trying to build a good society. They just have opposing understandings of how to do so. For what it's worth, I'm sympathetic to the Left's argument that gender identity isn't inherently tied to biology. When I hear someone say they feel they were born in the wrong body, it implies some quintessential personhood beyond the body, say, a soul. I identify much more with that belief than I do with the rigid materialist view that we're nothing more than our bodies. As such, though I've never experienced gender dysphoria myself. I think extending compassion towards those who do is good practice. I don't think that compassion excludes questioning prescriptions for the issue. For example, I'm still skeptical of youth medical transition, and I'm okay with guardrails in place against that, but I don't want to dismiss outright another person's lived experience. With all that said, though, when it comes to laws governing women's sports, I do think the rigid, materialist, bioessentialist view has to win out in order to preserve athletic opportunities for natal girls and women, even if that means excluding transgender women. Before we can get into the arguments themselves, we have to first understand the basic facts at issue. Male physical advantages over females are well documented in science. Differences in athletic performance exist before puberty and become more pronounced during and after puberty. These differences in performance are even reflected in some standardizations in men's and women's leagues in different sports. Think the different sizes of basketballs in the NBA versus the wnba, or the varying net heights in men's and women's volleyball. Additionally, U.S. constitutional law acknowledges that state laws can sometimes discriminate against men or women legitimately in order to ensure equitable treatment. That's exactly why separate men's and women's sports leagues are recognized by the law. And it's why alleged sex based discrimination, the issue at the heart of yesterday's arguments, triggers intermediate scrutiny upon review and not strict scrutiny, which is the highest level of scrutiny the courts can apply. One of the core issues at the heart of trans participation in women's sports is whether these sex differences still apply. In both Hickox and bpj, the transgender athletes argued that due to their hormone therapies, they didn't have the same biological advantages over women that other males would have. But Hickox's argument in particular doesn't seem to hold water. Testosterone suppression doesn't significantly reduce the advantage gained by athletes who undergo male puberty. And as for BPJ's case, we lack meaningful evidence of whether the prevention of male pubertypart of the gender treatment that BPJ underwent closes the gap. Admittedly, the limitations of scientific evidence here are frustrating for both sides. The common argument from trans advocates is that other physical advantages don't result in categorical exclusion, for example Biological females who naturally overproduce testosterone. But I'm skeptical of attempts to use edge cases to justify the redefinition of a much larger category. Sure, specific women's natural individual differences grant them athletic advantages, but that doesn't change the fact that the vast majority of female athletes have similar levels of testosterone, bone density, and so on. It also doesn't mean that the category of women's sports, which rose over the course of hundreds of years of feminist advocacy and social advancement, should now be essentially redefined without significant evidentiary backing. Of course, the question of defining women's sports is its own fundamental issue, even separate from the scientific argument about male advantage. I mentioned earlier that I think these ontological questions what is sex? What is a woman? Are primarily the concern of the right when it comes to gender issues. The left is content for those definitions to be more fluid. Unfortunately, fluidity just doesn't work in the legal realm, and especially not before this Supreme Court law is essentially a superstructure of definitions. For laws to be applied and enforced, lawmakers must agree on key definitions of terms. Thus, in order to win this case, Hickox and BPJ needed to come in with strong definitions that clearly showed they were being discriminated against on the basis of sex. I don't think they did. Many of the justices, including the more moderate conservatives and particularly Justice Gorsuch, whose Bostic opinion was a landmark for trans rights, didn't seem convinced by their arguments. Justices Roberts, Barrett, and Thomas probed deeply into the definitional questions and seemed skeptical that Hecox and BPJ could prove this was sexual discrimination. Meanwhile, Justice Kavanaugh seemed reluctant to make a broad ruling on trans athletes when the states are split almost 5050 on the issue and there's not a broad scientific consensus. And most worryingly to me, in an exchange that has drawn a lot of attention, when Justice Alito asked lawyer Katherine Hartnett, representing Hecox, to provide a legal definition of sex, Hartnett refused. Additionally, ACLU attorney Joshua Block, who represented bpj, first said the Supreme Court shouldn't define sex in its decisions on the case. Only after tough questioning from Chief Justice John Roberts did Block concede that Title IX defines sex as biological sex. And even then, Block argued that such a definition could cause problems in the future. This exchange, I think, sums up the fundamental flaw with legal challenges to laws barring trans athletes participation in women's sports, as well as flaws in the movement to change legal definitions of sex and gender more broadly. The failure to define sex, even while Hartnett and Block argued that their clients had faced discrimination on the basis of sexual, would make sex based laws nigh impossible to apply consistently. And while sports regulations are relatively low stakes, a legal precedent for a squishy definition of sex can quickly create high stakes situations. If sex isn't defined in the eyes of the law, then what happens to the decades long arguments that have given rise to protections for women in the workplace or in prisons. In the end, I expect that the court will uphold these state laws, and I think it has a strong legal basis for doing so. But I still won't be celebrating the result as strongly as some on the right. In the end, sports are ultimately a great opportunity to stay active, push your limits and have fun with friends, and these state laws prohibit Hecox and BPJ from taking part in those activities. I don't think these particular athletes have nefarious intentions like stealing opportunities from females, and I can't help but sympathize with the pain that their exclusions necessarily cause them. But at the same time, I think clear definitions about women's sports based on the science of physical differences is important to preserving the integrity and value of sports for biological women who deserve the chance to compete without worrying about opponents unfair disadvantages.

Isaac Saul (29:24)

We'll be right back after this quick break.

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Audrey Moorhead (30:39)

Thanks for listening to my take. We have two staff dissents today, one from Associate Editor Lindsey Knuth and one from Executive Editor Isaac Saul. Here's Lindsey.

Lindsey Knuth (30:48)

Thanks Audrey. This is Associate Editor Lindsay Knuth with a staff dissent. I agree that the justices will likely side against the trans athletes in these cases, and I'm equally frustrated with Hartnett's failure to engage with the definition of sexual that her argument centers on. But I disagree that embracing some flexibility in the law for trans women's participation in women's sports would meaningfully erode Title ix. I don't think sending the cases back to the lower courts and allowing states and schools to grant narrow exceptions to young trans athletes. Perhaps those who haven't yet hit puberty or are on puberty blockers would introduce the kind of snowball effect Audrey is concerned about. At a time when scientific understanding is still burgeoning, enacting broadbands is a step in the wrong direction, both for states rights and for the athletes involved who deserve access to the social and physical benefits that sports offer.

Isaac Saul (31:44)

Hey guys, this is Isaac here with another staff dissent. So I always view these rulings through two lenses, the legal arguments and the outcomes. And I broadly agree with Audrey's assessment of the legal arguments here. But I disagree with her that the, quote, rigid, materialist, biological essentialist view has to win out in order to preserve the category of women's sports Sporting governing bodies are perfectly capable of making safety decisions themselves. Whether it's how much contact is allowed in women's lacrosse for kids versus college athletes, pad sizes for hockey players, or tackling rules in football, we should react the same way we might if a state or federal government tried to ban all tackle football. Which is to say, that's not your job and we can govern this ourselves. As I've argued before, some organizations will want to be inclusive for trans athletes, and they should be allowed to without government interference.

Audrey Moorhead (32:44)

Thank you both. And now we'll go back to Will for the rest of the podcast. Foreign.

Will K. Back (32:54)

Will Jumping Back In Here to Take us home let's get into today's under the radar story. On Monday, the New York Post reported that top aides to Labor Secretary Lori Chavez Darimer were placed on administrative leave by the department's inspector general while they're investigated for fraudulent use of official travel for personal trips. According to a complaint filed in December, Chavez Darimer asked the aides to make up official trips to locations where she wanted to spend personal time. The complaint also accused the labor secretary of an inappropriate relationship with a subordinate and of drinking alcohol during the workday. Chavez Darimer has not commented on the investigation, but spokespeople for the White House and the Labor Department both denied the allegations. The New York Post has this story, and we'll share it in today's show. Notes finally, here's today's have a nice day story. The Lake Wenatchee YMC camp in Chelan County, Washington, has been a source of lifetime memories forged in the outdoors for nearly a century. However, in January 2025, the Wenatchee Valley YMCA board of directors voted to sell the property at the end of that summer's camp due to financial challenges that all changed when real estate businessman Dean Widener purchased the property and offered to lease it back to the YMCA for $10 per year for 99 years. Widener's gift will allow the camp to reopen in 2027 after taking a summer off in 2026 to regroup and continue serving generations of Washington youth. Here's what Dori Foster, the CEO of Wenatchee Valley ymca, said it's completely surreal and I haven't been able to stop smiling. The Seattle Times has this story and we'll share it in today's show. Notes all right, that is it for today's episode. Thanks as always for being with us and we'll talk to you tomorrow.

Isaac Saul (34:53)

Peace. Our Executive editor and founder is me, Isaac Sowell, and our Executive producer is John Lowell. Today's episode episode was edited and engineered by Dewey Thomas. Our editorial staff is led by Managing Editor Ari Weitzman, with Senior Editor Will K. Back and Associate Editors Audrey Moorhead, Lindsey Knuth and Bailey Saul. Music for the podcast was produced by Diet75. To learn more about Tangle and to sign up for a membership, please visit our website@retangle.com.

Lindsey Knuth (35:26)

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