The Supreme Court, Transgender Athletes, and Girls' Sports

This podcast is brought to you by ReliaQuest. Cybercriminals are constantly attacking. They want your data. They want your identity. They want your innovation. RelyQuest fortifies your business with agentic defense, AI that detects, contains, and eliminates cyber threats in minutes. It helps your security team move faster at the work that matters most to protect the business now and delivers insights to help them predict what's next. RelyaQuest. Agentic Defense for the Enterprise. Learn more at ReliQuest.com. That's R-E-L-I-A-Q-U-E-S-T.com. From the opinion pages of the Wall Street Journal, this is Potomac Watch. The Supreme Court hears two cases challenging laws in Idaho and West Virginia that bar transgender athletes from participating in girls and women's sports. Arguments that could affect 25 other states that have similar policies, as well as the High Court's jurisprudence on the 14th Amendment and Title IX. Welcome. I'm Kyle Peterson with the Wall Street Journal. We're joined today by my colleagues on the journal's opinion pages, Nicole Alt and Kim Strassel. 27 states have now enacted laws or policies that forbid biological males from joining girls' sports teams. But at least two of those states have now lost appeals in the circuit courts to transgender athletes seeking exemptions from those policies. One of these cases is brought by BPJ, a West Virginia cross country and track athletes. The other of the case from Idaho is brought by Lindsay Hickox, who tried out for... college track and cross-country sports at Boise State University and then played in the club soccer team. Nicole, maybe the place to start is give us a sense of how these laws are structured and how they operate. Yeah, so these laws, as you mentioned, 27 states have passed laws or policies like this that segregate sports based on biological sex. And that's defined as whether you're born male or female. And They forbid biological males from playing on women's teams, but they do not forbid biological females from playing on men's teams. And the purpose that these states have in doing that is to protect women because they generally have a physical disadvantage to men. So to underline that point, male sports teams are open to everybody still, even in these states. So if you're a girl and you want to be on the wrestling team in elementary school or the football team, that is still permitted. West Virginia in its brief specifically says that the... law that it passed was focused on the safety of women competitors. So, Kim, part of the legal argument today at the Supreme Court is focusing on whether this is an as-applied challenge. So this is not a challenge to the existence of these laws generally as applied to many athletes. It is a request, essentially, for the ability to get exemptions from them.

Let's start with a clip of Samuel Alito Samuel Alito, tangling with the attorney for Lindsay Hickox. All right. Suppose this school that has a boys, let's say, track team and a girl's track team. The school has that. And a student who... 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 firming. Surgery says, nevertheless, I am a woman. That's who I am. Can the school say no, you cannot participate on the girls' team? Sorry, so you're just a birth sex male who has all the advantages of birth sex male hormones and can the school borrow him from the woman's team? Yes, they can. But that person, is that person not a woman in your understanding? The person says, I sincerely believe I a woman, I am in fact woman. Is that person not a woman? 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. So, Kim, to my mind, the important thing to understand here is these are challenges to these laws as applied to these two individual athletes who, by the way, deny that there is any advantage as athletes. that they have enjoyed. So the briefs for Lindsay Hecox, for example, focus on the idea of testosterone as the advantage, the athletic advantage that males enjoy. And so suggests that transgender athletes whose testosterone is suppressed, do not have any advantage. BPJ has been on puberty blockers. The brief in that case says that BPJ never went through male puberty and has been on a type of estrogen since about the end of sixth grade. And notably, Kim, the states obviously dispute this and say that even pre-pubescent males have a athletic advantage, citing statistics saying that they run farther and they do more sit-ups on time sit-up tests. So part of what makes this tricky is that even at the Supreme Court, even as we reach this oral argument to the Supreme Court, the two sides are actually disputing the facts and what the science really show. To your point about an as-applied challenge, that is somewhat central to those who are bringing the case. And it's an interesting aspect that both sides do seem to agree on one thing. They have both been in court arguing that the number of individuals in question here.

those who identify as transgender and also seek to play in girls, women's sports is quite small. And, you know, it's actually hard to actually know what those numbers are. Charlie Baker, the president of the National Collegiate Athletic Association, said there were... fewer than 10 trans athletes competing out of more than 500,000 students playing college sports. But we don't know how many trans girls and women are playing sports at the K-12 level or in recreational programs, et cetera. But the reasons that both of these sides are making this case is on the one side, the advocates of these two particular plaintiffs argue that... This is getting way too much attention. There's no need for a sweeping rule. This should be decided on a case-by-case basis and look at our particular plaintiffs. They have reasons why they should be allowed to continue to play in these sports. Those in support of the laws argue that, in fact, because there are so few people out there, the laws should just be able to stand as a bright line because it really isn't harming any enormous number of people. You know, then this gets into the question of what the science knows. Idaho is... arguing that male athletic advantages begin before puberty. They have cited figures that average boys age 9 to 10 at the 50th percentile already are able to do far more than equivalent biological females at the same age. There's also some really good evidence presented in these cases that the individuals in question. certainly seemed to have a competitive advantage, especially the West Virginia case. There's a brief filed by a girl who competed alongside BPJ. She ended up being bumped out of a state tournament. And after BPJ consistently, despite being younger, outdid all her records. And then BPJ went on to place third in the state in discus and eighth in the shot put. And the state is putting this forward. some unknowns out there in terms of the science. But this is an interesting thing because the question of as applied or not is likely to be very central to what the justices decide in the end. We can get into that when we talk about Title IX and equal protection clause and scrutiny. But those are likely to be what this hinges on in the case. Hang tight. We'll be right back in a moment. This podcast is brought to you by ReliaQuest. Cybercriminals are constantly attacking. They want your data. They want your identity. They want your innovation. RelyQuest fortifies your business with agentic defense, AI that detects, contains, and eliminates cyber threats in minutes. It helps your security team move faster at the work that matters most to protect the business now and delivers insights to help them predict what's next. ReliaQuest. Agentic Defense for the Enterprise. Learn more at ReliQuest.com. That's r-E-L-I-A-Q-U-E-S-T.com.

Planning for retirement and all the things that go with it can be stressful. That's why Fisher Investments partners with you to understand your unique goals and needs so that they can build a tailored plan that helps you achieve a comfortable retirement. Whether you need help with financial planning, estate planning, tax optimization, or social security, Fisher has specialists to help. Fisher Investments. Now that's clearly different wealth management. Learn more at Fisher Investments.com. Investing in securities involves the risk of loss. Welcome back. On the point about the small numbers of transgender athletes involved here, the United States Deputy Solicitor General also participate in the oral argument. Here is part of what he said in his opening. It is undisputed that states may separate their sports teams based on sex in light of the real biological differences between males and females. States may equally apply that valid sex-based rule to biological males who self-identify as female. Denying a special accommodation to trans-identifying individuals does not discriminate on the basis of sex or gender identity or deny equal protection. All of that remains true, even assuming a man could take drugs that eliminate his sex-based physiological advantages. The law is reasonably tailored, regardless of whether it is perfectly tailored as applied to any such tiny subset of men. And states are not required to redefine sex or monitor the testosterone levels of female athletes. In short, male athletes who take performance-altering drugs are not similarly situated to female athletes and states need not treat them the same. So the point there, Nicole, is he's arguing that even if there are some small number of athletes for whom the general rule does not seem to apply, if the general rule is upheld by the Supreme Court, that's good enough legally. And the challenges here, some of them at least are under the 14th Amendment, which... promises the equal protection of the laws. And there is some history here at the Supreme Court about how you evaluate laws that classify based on sex, and they are subject to intermediate scrutiny. So it is not the strict scrutiny that is very difficult for a law to pass. It's a lower standard based on what the Supreme Court has recognized are real biological differences between men and women. Right. There are differences between the sexes. And so unlike race, there are cases where it's valid for a law to make distinctions between them, which is why they're subject to intermediate scrutiny and not strict scrutiny. And so the states are arguing in this case that the laws should be evaluated under intermediate scrutiny and that they pass that test, which is basically that the state has to have a substantial interest in what they're trying to enact and that they have the means that they...

rationale for this law. I mean, I can only imagine that if it's a 14th Amendment claim, I mean, are individual district court judges going to be deciding? Yes, on basketball, no on volleyball, yes on cross country, no on soccer. I mean, I just don't see quite how that is supposed to work. Yeah, it would be an absolute mess. And you just laid out some of those, another one that I would add in there just because we heard Ketanji Brown Jackson Ketanji Brown Jackson bring up the term. She said, you know, it would be up to the individual to submit to these things to make sure they didn't have a competitive advantage. What then counts as the evolving or non-evolving standard of a competitive advantage, right? I can just imagine the tables out there of saying, well, you know, you operated in the 50% realm compared to this. of people who were the same age and weighed the same amount than you did. I mean, it's really opening a Pandora's box. And I think that that is... Part of the allure of those in this case that are arguing on behalf of the state laws is that it's a lot cleaner. It's a bright line distinction. And that is something that is always a little bit more attractive to the justices because they recognize the risk of putting out muddy opinions that end up sending these cases straight back up to them only after decades of a lot of confusion in the lower courts. Clarity is always good. I mean, I think that that is one of the things that is actually working on behalf of those supporting the laws is that this is a bright line distinction. The challenge laws here, which define who may play in girls and women's sports, do so very clearly, very distinctly on the basis of sex, not on the basis of gender identity. And so the important point to make here, which works against those who are opposing. the laws is these are not discriminating on the basis of gender identity. They're disregarding gender identity. I mean, these laws essentially say boys can't play on girls' team. And by the way, that's true both for boys who identify as male and boys who identify as female. And there's a reason for it. Here's why. To go into anything else makes it way too complicated to do it on an as-applied basis with exceptions, opens up a mess of litigation. Let's stick to this. I think that my view is that the justices are going to be very tempted to go down that road and that reasoning. Hang tight. We'll be right back after one more break. This episode is brought to you by Charles Schwab. Decisions made in Washington can affect your portfolio every day. Washington Wise from Charles Schwab is an original podcast that unpacks the stories making news in Washington. Listen at Schwab.com slash Washington Wise. Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker, play the Opinion Potomac Watch podcast. From the opinion pages of the Wall Street Journal, this is Potomac Watch.

Welcome back. Nicole, another of the arguments that is raised in the BPJ case, and this is the one that the Fourth Circuit ruled against West Virginia on, is Title IX. And a little bit of focus on Title IX by Justice Brett Kavanaugh, a noted girls basketball coach in his personal life. I mean, he suggested that Title IX is responsible, at least a lot of people see it that way, for huge strides in recent decades in girls' sports. Cheryl's editorial on these two cases suggest that accepting the Fourth Circuit's argument that BPJ was subject to discrimination under Title IX would turn Title IX on its head. So talk a little bit about what Title IX is and how it relates to these two claims. Yeah, so Title IX was enacted in 1972 to banning sex discrimination in federally funded education programs. And part of the intent of it was to protect women's athletic opportunities. And it's implementing regulations allow for sex distinctions or sex separated sports and facilities. It's not saying that banning sex discrimination doesn't mean banning sex distinctions. And Title IX is clear about that. In Bastok, a few years ago, the court ruled that the ban on... sex discrimination under Title VII, which covers employment law, also applied to gender identity or transgender status. And the Bostock ruling was applied by the Fourth Circuit to Title IX in a case related to bathroom use and gender identity. And so the Fourth Circuit also in this sports case applied that ruling and said Bostock applies here. And the Fourth Circuit applied Bostock here and said that BPJ was being discriminated against in violation of. Title IX. Notable that the dissenters in that Bostock ruling warned that this might be the next step, that the Bostock decision might be taken by plaintiffs into women's sports and women's locker rooms. Kim, there's also a reverse argument. If I understood the representative of the Solicitor General's office in the oral argument today, I heard him, I think, say that the Trump administration has argued that permitting transgender athletes into women's sports is actually the Title IX violation, denying under Title IX women and girls spaces for women and girls. And notable, there's a brief, an amicus brief, in this BPJ case by a teammate referred to in the brief as AC. AC apparently has been bumped down the rankings by the participation of BPJ. but also suggests that BPJ has made comments and sexual bullying. It says in the locker room. So here's a line from the brief. The comments range from BPJ telling AC she had a, quote, nice butt to remark so vulgar that merely repeating them is incredibly embarrassing to AC. And my understanding is that BPJ has denied.

making those comments, but just, you know, for the sake of the argument on what Title IX really is supposed to mean in terms of, you know, protecting spaces for girls' athletics, but also for girls in locker rooms and so forth. It seems like that's part of the debate. Yeah, we've talked about now some of the science is being disputed here, the legal aspects that are being disputed, but the broader reality of Title IX in its intention. And obviously, Obviously, that's something that matters deeply to the justices is the idea behind the creation of statues, what went into them. And it was clearly designed to help women in sports, to give them their own facilities, their own places to play in an area of safety and freedom and happiness. And when you read that brief, which is very affecting, and I would suggest if you're going to go read something in this case, that is one worthwhile doing this brief. offered by AC, who is a teammate of BPJ. Very detailed explanations of the emotional distress that AC felt it having to change in a locker room or a bathroom alongside a biological male, fears of going to tournaments because often the teammates will room together in hotel rooms and the fears that some had with having to room overnight with a biological male. Obviously, those comments that were. made that whether or not they're in dispute, the reality is that comments could like that be made. And it is something that needs to be considered in all of this. I mean, we, as you know, Kyle, when Bostock was decided, we very clearly pointed out that it was going to create a bit of a mess. And here we are. It's now in the locker room, as it were, the women's locker room. One thing that I think is useful is that the chief joined Bostock. But he later sort of has been involved in some other cases that has tried to dial that back a little bit or cabinet some. One thing that he has pointed out is that Bostock was never necessarily meant to apply outside of the workplace. That certainly seems to be an interesting tack, and you're hearing some of the justices bring that up here now. There's also this question of rational basis review, as you were mentioning, different levels of scrutiny and whether or not in this case the argument won't just be that these state laws that they should be treated as having common sense rationale behind them and they're not subject to higher scrutiny, as it were. So I think that there are some ways that they can negotiate around some prior cases. But the Title IX thing, it could be that the litigation here isn't over, no matter what this case decides, because there may be some that demand an even clearer ruling from the Supreme Court about the sanctity of Title IX, as it were, as it relates to women athletes. Thank you, Kim and Nicole. Thank you all for listening. You can email us at PW Podcast at WSJ.com. If you like the show, please hit that subscribe button, and we'll be back tomorrow with another edition of Potomac.

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