SCOTUS Exposes the Endless-Exception Scam!

Quick Overview

The Supreme Court oral argument in Little v. Hecox exposed the perceived flaws in applying intermediate scrutiny to transgender-inclusive policies, with Justice Kagan suggesting that the law's focus on biological sex, rather than gender identity, means the law doesn't classify on the basis of transgender status, and counsel conceded that an exception based on transgender status would be the likely outcome if the Court were to apply intermediate scrutiny or if the state's policy was deemed moot because the petitioner graduated.

Key Points: Justice Kagan questioned whether the law classifying based on biological sex (male/female) is actually classifying based on transgender status, suggesting the law only turns on sex, not transgender status. Counsel argued that if the Court applies intermediate scrutiny, the legislature would have to draw reasonable inferences from substantial evidence, leading to an exception for transgender women, potentially undermining the statute's intent. The attorney conceded that if the plaintiff graduated (as in the hypothetical), the case would likely become moot, suggesting the basis for the claim would disappear. Justice Barrett pressed counsel on the implications of their theory if the law were applied to six-year-olds, where differences in athletic ability might not exist, suggesting a potential issue with the scientific certainty underpinning the policy. The discussion touched upon the idea that the state's classification is based on fairness and medical science regarding biological sex, not transgender identity, leading to the conclusion that transgender women would be treated differently. The counsel suggested that if the law is interpreted narrowly to only apply to biological females, it might survive scrutiny, but if it's interpreted broadly, it faces significant constitutional challenges. The oral argument revealed internal debate among the Justices regarding whether the current statute, focusing on biological sex, constitutes a transgender-based classification, or if it merely creates an exception based on sex.