The Patriot Post® · Discriminating Based on Sex Without a Definition of Sex

By Nate Jackson ·
https://patriotpost.us/articles/124223-discriminating-based-on-sex-without-a-definition-of-sex-2026-01-14

Can Idaho and West Virginia, and, by extension, 27 other states, define sports based on sex? That’s essentially the question the Supreme Court considered during yesterday’s oral arguments, and it certainly seemed likely that the Court would side with reason, science, and morality, as well as protect women’s sports from males pretending to be females.

Amy Howe at SCOTUSblog lays out the background of the two cases (Little v. Hecox and West Virginia v. B.P.J.), though I will make a couple of key edits for clarity and truth:

Idaho adopted its law in 2020; West Virginia followed one year later. Lindsay Hecox, now 24 years old, went to federal court in Idaho to challenge that state’s law. Hecox is a transgender woman man who wanted to be able to try out for the women’s track and cross-country teams at Boise State University; she he did not make those teams but later played club sports.

The West Virginia case was filed by Heather Jackson, the mother of B.P.J., a now-15-year-old transgender high school student who has publicly identified as a girl since the third grade. B.P.J. has taken puberty blockers to prevent the onset of male puberty, as well as hormone therapy with estrogen. B.P.J. has competed on the track and cross-country teams at school.

The Washington Post has a gushing profile on Becky Pepper-Jackson (B.J.P.), the West Virginia student, in which he and his supporters argue that “treatment” began early enough to negate any inherent biological advantage. The problem is that B.P.J. keeps winning girls’ events, and it’s sometimes not even close.

Indeed, the Post’s editorial board came out in favor of the state laws, rhetorically asking and answering, “Is there evidence that males are better athletes than females? Yes, scads.”

Previously, the Fourth Circuit Court blocked West Virginia’s law because it allegedly violates the 14th Amendment’s equal protection clause and Title IX of the Civil Rights Act by discriminating on the basis of sex. The Ninth Circuit Court blocked the Idaho law only on 14th Amendment grounds. In a bit of a twist, Hecox actually requested that the Supreme Court drop the case because he was no longer competing in athletics — in other words, he knew he was headed for defeat and would rather have no decision than a loss.

Back here in reality, as Justice Samuel Alito noted yesterday, you can’t violate equal protection or Title IX’s language about discriminating “on the basis of sex” if you erase the definition of sex.

Alito and Kathleen Hartnett, the ACLU attorney arguing both cases, had an incredible exchange that utterly eviscerated the trans ideology (forgive the length, but it’s illustrative):

Alito: Do you agree that a school may have separate teams for a category of students classified as boys and the category of students classified as girls?

Hartnett: Yes, Your Honor. …

Alito: If it does that, then is it not necessary for there to be, for equal protection purposes, if that is challenged under the equal protection clause, an understanding of what it means to be a boy or a girl or a man or a woman?

Hartnett: Yes, Your Honor.

Alito: And what is that definition for equal protection purposes? … What does it mean to be a boy or a girl or a man or a woman?

Hartnett: … We do not have a definition for the court…

Alito: Well, how can you, how can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes? …

Suppose this school has a boys’, let’s say, track team, and a girls’ track team. … 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 affirming surgery, says, “Nevertheless, I am a woman. That’s who I am.” Can the school say, “No, you cannot participate on the girls’ team?”

Hartnett: [After asking clarification] “Yes, they can.”

Alito: Is that person not a woman in your understanding? The person says, “I sincerely believe I am a woman…” Is that person not a woman?

Hartnett: 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 a part of the women’s team?”

Alito: … What you seem to be saying is yes, it is permissible for the school to discriminate on the basis of transgender status. Because if this person is a “trans woman,” a “trans girl,” and is barred from the girls’ team, then that person is being subjected to differential treatment based on transgender status, right?

Eventually, the challengers argued that there’s a “subset” of “birth-sex males” who shouldn’t be excluded from girls’ sports because they don’t possess all the physical advantages of normal males. The conservative justices appeared unconvinced by this hair-splitting definition of convenience.

Justice Amy Coney Barrett, who unfortunately used terms like “trans girl” and “cisgender,” nevertheless noted that regular testing to prove or disprove any inherent advantages would be far more invasive than simple male/female categories.

Meanwhile, Justice Ketanji Brown Jackson, who protested that she’s “not a biologist” when asked to define a woman during her confirmation hearings, is still every bit as deliberately ignorant now as she was then. See if you can decipher this mumbo jumbo:

You have the overarching classification, you know, everybody has to be, um, uh, uh, play on the team that is the same as their sex at birth. Um, but then you have a gender identity definition that is operating within that. Meaning, a distinction, meaning that, um, for, uh, cisginger [sic] girls they can play consistent with their gender identity, w- for transgender girls, they can’t.

“Cisginger.” LOL.

Her lowest moment, however, came when she said, “I guess I’m still struggling to understand why the state would have to have perfectly tailored laws. I— I— I would think the state would just have to make exceptions where people can demonstrate that the justification that makes the state’s conduct constitutional does — doesn’t apply to them.”

Justice Department attorney Hashim Moopan could hardly believe his ears: “So, making exceptions is tailoring your law. That’s literally what it means to tailor a law.”

Game, set, match. Well, at least I hope so when the Court renders its opinion in June.

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