If You Can’t Define SEX, You Can’t Claim DISCRIMINATION!

Quick Overview

The Supreme Court oral argument in Little v. Hecox centered on whether excluding transgender women from women's sports teams constitutes sex discrimination under the Equal Protection Clause, with the attorney arguing that the state's exclusion was based on biological advantage, not just gender identity, and that the Court should not need to define 'sex' or 'woman' to resolve the specific case, though the dialogue heavily featured hypotheticals about biological differences and necessary scrutiny.

Key Points: The oral argument focused on whether excluding transgender women from women's sports teams violates the Equal Protection Clause, with the attorney arguing for a sex-based biological advantage analysis. Justice Alito pressed the attorney on defining 'boy or girl' or 'man or a woman' for equal protection purposes, to which the attorney deferred to the statute's definitions and practice. The attorney conceded that if a school has separate teams for biological males and females, excluding a transgender person who has gone through puberty and suppressed testosterone might be permissible based on biological advantage, but that this was not an issue of animus. The attorney argued that the specific facts of the case did not require the Court to decide whether transgender women who have gone through puberty would be able to play on men's teams. Justice Kavanaugh highlighted that concerns about women's sports being overtaken by a large number of transgender people might justify a different factual situation requiring heightened scrutiny. The attorney referenced the Cayerano case (2000) to argue that excluding a subset of a protected class, like transgender women, still warrants heightened scrutiny. The discussion touched upon the difference between circulating testosterone levels (which the attorney found less invasive) versus requiring proof of genetic/reproductive anatomy or chromosomal testing.

Context: This video analyzes the oral arguments for the Supreme Court case Little v. Hecox, argued on January 13, 2020. The case concerns whether a school policy that exclusively classifies sports teams as 'boys' and 'girls' based on birth sex, thereby excluding transgender female athletes, violates the Equal Protection Clause of the Fourteenth Amendment. The discussion involves detailed hypothetical questioning from the Justices to the attorney representing the respondents, Kathleen R. Hartnett, focusing on the definition of sex, the standard of review, and whether biological factors confer an unfair advantage.