When the Supreme Court upheld Tennessee’s ban on puberty blockers, cross-sex hormones and surgery as treatment options for gender-confused youth last year, it unexpectedly riled up the law’s supporters by adopting much of the language and assumptions of the gender ideology movement, including that sex itself can be changed.It was deja vu all over again at the high court Tuesday for a pair of hearings on Idaho and West Virginia laws that ban males from competing in girls’ sports, with apparently at least five votes for upholding the laws but the same activist lingo and pseudoscience.
Both Democratic and Republican nominees on the nine-member court described males who identify as the opposite sex as transgender “girls,” “women” or simply “athletes” who compete against females, erasing the immutable maleness at the heart of the laws.
They barely acknowledged the thoroughly studied sex differences between males and females relevant to athletic competition, documented in friend-of-the-court briefs by sports physiologists, letting lawyer Kathleen Hartnett insist Idaho’s stated purpose for the law did not exclude her male client, Lindsay Hecox, from women’s competition.
Hartnett is trying to walk a tightrope, arguing that Idaho’s rationale of protecting females from males’ athletic advantage doesn’t apply to males like Hecox who suppress their testosterone, which Hartnett claims erases male athletic advantage. That would make Idaho’s law unconstitutional “as applied” to such males.
Justice Amy Coney Barrett came in for particular disdain on X for not only repeatedly using “trans girls” for males, and the activist term “cisgender” for people who identify with their sex, but also for claiming relevant sex differences don’t materialize before puberty.
Idaho counsel Alan Hurst corrected Barrett on her question about how Idaho’s argument would fare “if we’re talking about six-year-olds,” saying males still have “about a 5% athletic advantage over girls in most situations.”
“Contrary to what Justice Barrett has stated, puberty suppression does not eliminate the male advantage in sports. Significant sex differences in athletic performance exist before puberty,” evolutionary biologist Colin Wright wrote, citing exercise scientist Gregory Brown’s essay for Wright’s newsletter.
Science journalist Benjamin Ryan cited peer-reviewed papers by physiologist Michael Joyner and developmental biologist Emma Hilton in response to an NPR segment ahead of arguments that claimed research shows no inherent male advantage in sports and that Idaho and West Virginia banned “girls” from “playing sports.”
Males still have an edge in women’s sports even with “sustained testosterone suppression and estrogen treatment,” and Joyner’s research shows a “small but significant competitive advantage over girls” for boys before puberty, probably because of prenatal testosterone and “mini puberty” during infancy, Ryan wrote.
Justice Samuel Alito emerged as the conservative hero among the court’s six GOP nominees through questioning perceived as the nail in the coffin to the Idaho challenge.
Hecox lawyer Hartnett agreed with Alito that schools can legally maintain sex-segregated teams, and that an equal protection challenge would require “an understanding of what it means to be a boy or a girl or a man or a woman,” but Hartnett couldn’t define “boy” or “girl.”
“How can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?” Alito responded.
Hartnett also admitted it was permissible for a school to reject a male from the girls’ track team, who identifies as a girl but had received no blockers, hormones or so-called gender-affirming surgery. When Alito asked whether such a person was a “woman,” Hartnett answered she would “respect their self-identity in addressing the person.”
Alito marveled that Hecox’s lawyer had seemed to concede that discrimination on the basis of transgender status is legal.
