Supreme Court Hearing on Transgender Students Sports Bans

Speaker 2 (00:02):

… V. Hecox, Mr. Hurst.

General Alan Hurst (00:05):

Thank you, Mr. Chief Justice, and may I please the court. Idaho's law classifies on the basis of sex because sex is what matters in sports. It correlates strongly with countless athletic advantages like size, muscle mass, bone mass, and heart and lung capacity. Tragically but not surprisingly, male athletes have even injured female athletes in many sports. If women don't have their own competitions, they won't be able to compete. Gender identity does not matter in sports and that's why Idaho's law does not classify on the basis of gender identity, it treats all males equally and all females equally, regardless of identity and its purpose is exactly what the legislature said, preserving women's equal opportunity.

(00:49)
In fact, it's our friends on the other side who want to classify based on gender identity. They're seeking special treatment for males who allegedly lack an unfair advantage, but only if those males also identify as transgender. Denying special treatment isn't classifying on the basis of transgender status, it's consciously choosing not to. Idaho's sex-based classification would get intermediate scrutiny if Hecox challenged it, but Hecox's requested relief presupposes separate women's sports. All Hecox challenges is law's application to a tiny subset of males who identify as transgender and suppress their testosterone, but that's not how intermediate scrutiny works. Idaho's law is a substantial fit for 99% of males and a perfect fit is not required. If it were, that would be the end of all sex-based classifications.

(01:43)
Finally, a word about mootness when trying to avoid mootness below Hecox told the court, "I intend to play women's club soccer this semester, next semester and through the remainder of my time at BSU." A contradictory post-cert affidavit does not make it absolutely clear this controversy is over, so Hecox's formidable burden isn't met and this case isn't moot. I welcome the court's questions.

Supreme Court Justice Clarence Thomas (02:09):

There'll probably be some questions about Mootness, but I'd like you to, in focusing on the equal protection analysis, in here, the sex classifications in sports is not being challenged.

General Alan Hurst (02:26):

That's correct.

Supreme Court Justice Clarence Thomas (02:27):

How does that work, in this case, when we're talking about one individual being accepted from a particular or included in a particular category?

General Alan Hurst (02:38):

There's no basis for heightened scrutiny, intermediate scrutiny in that situation, Your Honor. If the sex-based line passes intermediate scrutiny, which no one disputes that it does, then the edge cases, the potential exceptions, that's all rational basis review.

Supreme Court Justice Sotomayer (02:53):

That makes no sense to me, all right. And I don't know how you can say sex classification is not being challenged. There's no question here that a male who identifies as a female, but it's a male, is being excluded from a female sport, correct?

General Alan Hurst (03:11):

That's correct.

Supreme Court Justice Sotomayer (03:12):

All right, by its nature, that's a sex classification and all sex classifications we have said repeatedly in our case law require intermediate scrutiny. Now what you're saying is, well she's not challenging males generally not playing, she just doesn't want to be the one male excluded. So it's a subclass of people that she's challenging, correct?

General Alan Hurst (03:41):

Yes, I think that is correct.

Supreme Court Justice Sotomayer (03:43):

All right, so how do you square our various case law? Caban, Lehr, Cleburne, VMI in particular, all of whom involved a subclass of people who challenged on equal protection grounds their exclusion from a definition?

General Alan Hurst (04:07):

I'm happy to take those cases in order, your Honor, starting with Caban, there is no notion of as-applied anything in Caban. In Caban, it was a facial challenge to the statute and individual circumstances were used as examples to prove that the statute was overbroad and lacked a substantial fit.

Supreme Court Justice Sotomayer (04:22):

That's the point. That's what she's saying here, that the state interests here is the safety of women, correct?

General Alan Hurst (04:28):

[inaudible 00:04:29].

Supreme Court Justice Sotomayer (04:29):

And promoting competition, that's the state interest.

General Alan Hurst (04:35):

Fairness-

Supreme Court Justice Sotomayer (04:35):

In Caban the state interest was in ensuring that only children with active parents, let's say were given a state benefit, correct?

General Alan Hurst (04:48):

Yes. And Caban was struck down facially, the statute was considered unjustified.

Supreme Court Justice Sotomayer (04:55):

How about Lehr?

General Alan Hurst (04:57):

In Lehr we had the same … We had-

Supreme Court Justice Sotomayer (04:59):

That's the opposite. That's the subclass. The people who were excluded.

General Alan Hurst (05:03):

In Lehr the court said, the law would be justified with respect to you, plaintiff, and because the law would be justified with respect to you, you are not able to challenge the law elsewhere.

Supreme Court Justice Sotomayer (05:17):

All right, how about VMI? That distinction doesn't make any sense to me. It's still an exception. It's a subclass of people who are covered by the law and others are not, that's what we said.

General Alan Hurst (05:27):

The VMI case is the flip side of Idaho's law, the VMI case equal opportunity required letting women in to previously single sex spaces, in this case equal opportunity for women requires giving women separate spaces and VMI said that was okay. VMI said separate housing-

Supreme Court Justice Sotomayer (05:46):

That's begging the very question at issue here, you can have a sex classification based on sex, you just have to have a reason for it and one that matches your exclusion. What you're trying to say is we don't even look at the reason to see if it has a scientific basis.

General Alan Hurst (06:06):

The reason we don't look at the reason in this case to see whether there's a scientific basis is because no one disputes that there is a scientific basis for separate [inaudible 00:06:13] in sports.

Supreme Court Justice Sotomayer (06:13):

Oh, but there is-

Supreme Court Justice Kagan (06:13):

Are-

Supreme Court Justice Sotomayer (06:14):

… a dispute of that.

Supreme Court Justice Kagan (06:15):

I'm sorry.

Supreme Court Justice Sotomayer (06:16):

Go ahead.

Supreme Court Justice Kagan (06:17):

Are you then saying Mr. Hurst that there really is no such thing as an as-applied equal protection challenge?

General Alan Hurst (06:24):

No, your Honor, but what I'm saying is that equal protection, the question is whether the classification is valid and not whether it makes sense in individual situations.

Supreme Court Justice Kagan (06:31):

But that sounds to me is though, and I think our President is actually very sparse in this area, sort of surprisingly sparse, but it sounds to me is what you're saying is as long as the classification is facially valid, a person does not get to come in and say, that with respect to some subclass, a small subclass in this case, a person doesn't get to say with respect to some subclass, there's a mismatch, that the justification has run out, that the justification doesn't apply. You are saying that that really is just not an available argument?

General Alan Hurst (07:14):

I agree. That is not an available argument and I think this court has taken that approach, our approach in cases from Kahn v. Shevin all the way to Nguyen, and Nguyen is the best example because there the petitioner had been raised in the United States by the US citizen father and the court said, "Congress's interest in making sure there's a connection with the United States is enough to justify the classification." Well, this petitioner obviously had the connection with the United States, there was no basis to apply these justifications to that petitioner, it didn't matter.

Supreme Court Justice Kagan (07:47):

I mean, one thing that this case could be about is, and this case, I mean generally this litigation, is whether the plaintiffs are right here, that there is a mismatch, right? And some of your briefing addresses that question. You can take all the hormones in the world, you can take all the puberty blockers in the world, you say, and there still will be a competitive advantage. That's one thing that this litigation could be about and one way to resolve this litigation.

(08:23)
Another thing that this litigation could be about is this deeper and as I say surprisingly unanswered in my mind, equal protection question about what an as-applied equal protection challenge is and whether they exist, and I guess you are suggesting that we should … Well, I don't really know what you're suggesting because here you're saying, "Look, just do it that way, they could be right on the science and we would still win." A lot of your briefing really contests their view of the science. So which way should we think about this case?

General Alan Hurst (09:08):

We think that equal protection jurisprudence is about the validity of classifications. It takes a classification to trigger the doctrines to begin with and then you ask, is the classification justified under intermediate scrutiny? And so we think that's the right approach. Is the classification justified? Not is it justified in each individual instance because as Nguyen said, this court has never held, Nguyen said that a law has to be capable of achieving its ultimate objective in every instance, and as soon as that possibility of forcing the legislature to justify the law with respect to individual plaintiffs is on the table, intermediate scrutiny is over. That is strict scrutiny.

Speaker 1 (09:47):

Can I question the premise that you are putting forward? Even if I agree with you that equal protection is about, is this classification justified? I think that begs the question, what is the classification? And so to the extent that you have an individual who says what is happening in this law is that it is treating someone who is transgender but who does not have because of the medical interventions and the things that have been done, who does not have the same threat to physical competition and safety and all of the reasons that the state puts forward, that's actually a different class says this individual, so you're not treating the class the same, and how do you respond to that? In other words, the as-applied challenge essentially redefines the class or one could think of it as that and so what's wrong with that number one, and how do you square that with our holdings in Caban, which Lehr later described in this way. In other words, Lehr suggested that Caban was establishing that as-applied challenges of this nature do exist.

General Alan Hurst (11:09):

Certainly the … I'll take the second question first.

Speaker 1 (11:13):

Yes.

General Alan Hurst (11:15):

Caban says nothing about as-applied. I know that Lehr says later this was an as-applied case, but simply reading Caban, it does not say that, it simply applies [inaudible 00:11:24]-

Speaker 1 (11:23):

No, I understand, but those two cases were in juxtaposition with one another and Lehr comes out the way it does distinguishing Caban on the basis that it's an as-applied challenge and we and Lehr have a facial challenge and it's basically the same facts. So if you're right, that those two cases can't come out the way they do.

General Alan Hurst (11:45):

I don't think so, your honor. Again, Lehr was actually briefed as a standing argument of, maybe you might be able to argue that this law is overbroad, but you individually are not in the overbroad part and therefore you don't get to challenge it. The court didn't use standing language, like express standing language in the opinion, but that is the logic of the opinion.

Supreme Court Justice Neil Gorsuch (12:04):

Mr. Hurst?

General Alan Hurst (12:05):

Yes.

Supreme Court Justice Neil Gorsuch (12:06):

There's another way to think about the case. Your friends on the other side posit, and that is that transgender status should be conceived of as a discreet insular class subject to the heighten the scrutiny in and of itself given the history of de jure discrimination against transgender individuals in this country over history in immigration and family law, cross-dressing statutes. They give a long laundry list and I'd like you to respond to that.

General Alan Hurst (12:37):

Certainly on the de jure discrimination point specifically, there has been some discrimination against transgender people, significant discrimination against transgender people in the history of this country. The same can be said of many groups. The same could have been said of the mentally disabled in Cleburne, et cetera, et cetera. I think Justice Alito's concurrence in scrimmage is helpful with this in saying this quasi-suspect class or suspect class process, what we're really looking for is classes that look like race or like sex and if you compare the discrimination in this case where not one of the laws they cite actually classifies expressly on the basis of transgender status, if we look at that history and we compare it to the history of African-Americans and women who were not able to vote, who were not able to own property, who had express classifications based on their status written into the law for most of this country's history, these things don't compare. They're just not alike.

Supreme Court Justice Sotomayer (13:27):

Well how-

Supreme Court Justice Neil Gorsuch (13:27):

[inaudible 00:13:29]-

Supreme Court Justice Sotomayer (13:28):

I'm sorry.

Supreme Court Justice Neil Gorsuch (13:29):

No, please.

Supreme Court Justice Sotomayer (13:29):

No, go ahead.

Supreme Court Justice Neil Gorsuch (13:34):

There are two things in that answer that are kind of at odds with one another. You start by saying you don't question that there's a history of discrimination, assume de jure in this country and then you say, "Well, but they don't classify on that basis." How should we think about that?

General Alan Hurst (13:55):

I think that the famous footnote four helps, has it been a discrete and insular minority? Has it been a group of people that were recognized as a group where laws were passed on the basis of their membership in that group demonstrating that they lacked the political power to protect themselves in the political process? This is from Justice Barrett's concurrence, of course. We just don't have any of that here. All they can point to is conduct. It says, "No cross-dressing, no drag performances in bars," these kinds of things, as I think our friends on the other side would admit, people cross-dress who aren't transgender, this is not a classification on that basis.

Supreme Court Justice Sotomayer (14:33):

What do you do with the legislative history in this case where the people who introduced the bill called it a transgender bar? So you've been answering Justice Gorsuch, you said there's no evidence of that, but there's certainly a lot of comments in this bill when it was passed.

General Alan Hurst (14:57):

Your honor, I respectfully disagree. I am aware of nothing in the legislative record that says that. I know that the Ninth Circuit opinion says that, but if you'll notice the key quote that the Ninth Circuit relies on puts the words transgender women in brackets. And if you look up that colloquy in the legislative record in their transcript that they provided in the district court, the word transgender, gender identity, et cetera, do not appear in that section of the transcript.

Supreme Court Justice Sotomayer (15:21):

Can I go back to the mootness question that Justice Thomas talked about, but not addressed here at all. Yes, this respondent made certain allegations about her intent at a certain point, but she signed an affidavit with this court attesting that she has permanently stopped playing sports covered by the ban. She will not try for any school-sponsored women's sports and in fact, I think she'll finish school very shortly. And there's no reason to question the sincerity of that belief given that dropping out of sports puts you at a disadvantage where you lose your competitive edge and she's going to graduate soon. How is this different than Acheson Hotel where the person in the litigation made representations that she intended to visit and continue visiting hotels in the future and then when the case got before us, she voluntarily dismissed those suits, like here, with prejudice and we then directed that the case be considered moot. How is that different

General Alan Hurst (16:40):

To begin with-

Supreme Court Justice Sotomayer (16:41):

I add one further difference between the two cases.

General Alan Hurst (16:44):

Certainly.

Supreme Court Justice Sotomayer (16:45):

Here, it's not like she's attempting to avoid us reaching the question. In just a little while we're going to reach the identical question in another case so we don't have a subterfuge in attempting to stop the court from reaching an important legal question.

General Alan Hurst (17:04):

I'll start with Acheson Hotels, Your Honor. In Acheson Hotels, no one disputed that plaintiff's plans going forward in this case, even the district court does not credit the plaintiff's plans going forward. The district court struck the notice of dismissal and said, "Hecox's plans have changed before, Hecox's plans could change again. And also the court feels that this is somewhat manipulative in order to escape the Supreme Court's jurisdiction."

(17:28)
None of that existed in Acheson Hotels and that puts us in city of Erie territory where in that case the premises were sold, the business was closed, the owner was in his 70s and they said, "That's not enough, you could still reopen this business. Your company is still incorporated." Under these circumstances where it's the respondent seeking through post-certiorari to moot the case. That isn't enough, this case isn't mooted.

Speaker 2 (17:53):

Thank you, Counsel. Justice Thomas?

Supreme Court Justice Clarence Thomas (17:58):

Does the justification for a classification as you have in Title IX male-female sports. Let's take for example, an individual male who is not a good athlete, say a lousy tennis player and does not make the women's, and wants to try out for the women's tennis team, and he said, "There is no way I'm better than the women's tennis players." How is that different from what you're being required to do here?

General Alan Hurst (18:31):

It's not at all different, Your Honor, and that's exactly what we're concerned about, that their arguments about needing to make exceptions from an otherwise valid classification for people for whom that classification doesn't make sense, those arguments don't limit themselves to people who identify as transgender. Many males could say, "I can't really compete with the women's basketball team and therefore I should be able to try out," and I haven't seen an answer from the other side as to why they couldn't, beyond … I correct myself, they say that, "Well, those people don't face the same dignitary harm as transgender people," but I don't see how that's relevant to the intermediate scrutiny analysis. The analysis is, is this classification substantially related to legitimate state interest? The person's reasons for wanting to violate the classification don't come into the analysis.

Speaker 2 (19:18):

Justice Alito?

Supreme Court Justice Samuel Alito (19:22):

Justice Sotomayor raised the question whether the issues here are identical to the issues in the case we're going to hear in a couple of minutes and I'd appreciate your views on that. Suppose we affirm or reverse in this case, I'm sorry, in the other case, would that leave something undecided with respect to your case?

General Alan Hurst (19:49):

Yes, your Honor. Our case involves the issue of the constitutional definition of sex, which the Ninth Circuit made a decision about what sex means for constitutional purposes. The Fourth Circuit did not make that decision. We will be bound by that decision going forward unless the court reaches that question. That said, I would dispute the premise of the question because whether or not the court has Article III jurisdiction in this case does not depend on what the court might do another day in a different case.

Supreme Court Justice Samuel Alito (20:16):

No, that wasn't the premise of the question. It was just an attempt to explore the consequences of deciding the mootness issue one way or the other. Thank you.

General Alan Hurst (20:24):

Thank you, Your Honor.

Speaker 2 (20:25):

Justice Sotomayor?

Supreme Court Justice Sotomayer (20:27):

There's a Munsingwear GVR that's being agreed to here so you're not bound by anything in this case and our decision there will inform any new decision in the Ninth Circuit on this issue, correct? Whatever analysis we adopt in the little case will control what happens in a new case?

General Alan Hurst (20:52):

That is law, Your Honor. Yes.

Supreme Court Justice Sotomayer (20:53):

All right. With respect to the Erie case there, the 90-year-old man never said he didn't intend to open another business, he just said this business and that was the distinction we saw. He or she has said, "I don't intend to do this." Now, every other promise that she made in this litigation that she was going to continue trying out that she was going to stay in sports held true until this case and the negative attention she received, correct? To say she misrepresented her intent is going a little extreme when she honored all her intent and only changed her mind when new circumstances arose, i.e., the notoriety of this case, correct?

General Alan Hurst (21:47):

No, your Honor. Nothing changed externally to the plaintiff. The plaintiff's affidavit filed in this court says that there has been negative attention and so forth since the beginning of this case. The only thing that changed is this Court granted certiorari and then after that the plaintiff said, "I want out and so I will stop playing sports."

Supreme Court Justice Sotomayer (22:06):

Do you dispute that having a case named after you makes your infamy live forever? Think of-

General Alan Hurst (22:16):

No, Your Honor.

Supreme Court Justice Sotomayer (22:16):

No? You don't think that Brown and any of the other names plaintiffs that we have in famous cases drawn attention to those people as people? Have you studied your law cases? Students do all the time. I think one of my colleagues had a course where they looked at the lives of the plaintiffs. Do you doubt that having a named case with such an eventful event is going to continue attention on this person?

General Alan Hurst (22:53):

I don't doubt there will be attention and I confess-

Supreme Court Justice Sotomayer (22:56):

Negative attention.

General Alan Hurst (22:57):

And I confess I have studied a few law cases, but-

Supreme Court Justice Sotomayer (23:01):

Have you studied the people?

General Alan Hurst (23:03):

To some degree, Your Honor. What I would disagree with is there's no background principle of plaintiffs get to leave the litigation whenever they want. Even Rule 41, even in just the district court, the rule is that once the litigation hits a certain point, you can't leave.

Supreme Court Justice Sotomayer (23:17):

So what you're going, assume, I know you don't want to, that you were to lose this case, you would say that we have to force an unwilling plaintiff who has offered to dismiss with prejudice, promise not to incur this activity again, we would force that person to continue prosecuting this case?

General Alan Hurst (23:42):

The court did in City of Erie.

Supreme Court Justice Sotomayer (23:44):

That it did there, but is it the right thing to do? We didn't do it in Acheson.

General Alan Hurst (23:50):

In Acheson, no one disputed that the case was moot. The only question was which Article III question would be decided first. In this case, we dispute the case is moot. We dispute all of the facts that this is based on. It is a formidable burden that Hecox bears, that's from Already v. Nike to show that it is absolutely clear that this conduct cannot be reasonably expected to reoccur. We think as the District Court said in its striking order, that based on the changing history here, based on the past conduct, as Scalia mentioned in his footnote three of his city of Erie concurrence, there is a reasonable basis to doubt whether Hecox's current plans are the final plans. And as long as there's a reasonable basis not to credit the current plans, article III lets the court hear the case.

Speaker 2 (24:37):

Justice Kagan?

Supreme Court Justice Kagan (24:38):

Mr. Hurst, I want to take you back to our conversation about whether there's such a thing as-applied equal protection challenges. And I ask you for two things. The first is I do think that that runs counter to a couple of things that we think of as basic principles of constitutional law and maybe equal protection law, particularly. In constitutional law we often say as-applied challenges are the preferred mode of constitutional adjudication, certainly we have not erected bars to them in any other area as far as I understand it. And then in equal protection law, we say all the time things like, people need to be treated as individuals and not just as members of a group. And I'm wondering whether both of those principles don't suggest that any bar on as-applied equal protection challenges is just wrong, is off.

(25:37)
And then the second thing I want you to do after you do that is assume for me that there is such a thing and to tell me how in your view an as-applied equal protection challenge ought to work in this case.

General Alan Hurst (25:55):

Certainly, Your Honor, the first answer would be I recognize those principles that Your Honor is alluding to, the contrary principle would be the very nature of intermediate scrutiny analysis. That it is always possible, if you only have a substantial fit supporting legislation, then it is always possible to find people whom it doesn't fit and then we're in strict scrutiny.

Supreme Court Justice Kagan (26:15):

So I completely take that point, Mr. Hurst. I mean, you're exactly right, and of course intermediate scrutiny is different from strict scrutiny, it doesn't require the almost perfection that strict scrutiny does, I completely take the point. But isn't that point really addressed to what we often consider in these areas, which is to facial challenges? So when you bring a facial challenge, of course that's right, that you're allowed to have over inclusiveness and under inclusiveness, a lack of a perfect fit, but that the nature of an as-applied challenge is different.

General Alan Hurst (26:51):

Certainly the court could do that, Your Honor, the court has not done that before, as I think we both agree. And the result of that would be judge made exceptions to laws anytime judges thought they didn't make sense for a particular classes of plaintiffs and the deference to the legislature that should exist to some degree, even under intermediate scrutiny would be done away with, it would be gone. And then the administrability justification for many sex-based classifications, including this one would also be gone because you could no longer administer the classification evenly, you would have to make as many exceptions as courts thought you needed to make. So it's really an institutional competence thing or institutional power thing between courts and legislatures.

Supreme Court Justice Kagan (27:30):

So you're suggesting to me that the whole thing is just unworkable and we shouldn't … But flip to the second prong of my question, which is suppose we said yeah, as-applied equal protection challenges exist as-applied, anything challenges do. What would it look like, do you think? What should it look like?

General Alan Hurst (27:51):

Yeah, I'm not sure what it should look like. I can say what it does look like in this case and why we think there's a problem with it.

Supreme Court Justice Kagan (27:58):

So you're not willing to take me on my second path, which is like let's assume that there is such a thing as this challenge.

General Alan Hurst (28:04):

Yes.

Supreme Court Justice Kagan (28:05):

How should we view it?

General Alan Hurst (28:08):

I mean, the most I can say, I doubt this is a satisfactory answer, Your Honor, but the most I can say is that the as-applied nature of a challenge might go to the remedy. The legal analysis still focuses on the classification and the justification for the classification. And once we're talking about individuals, we're not talking about a classification anymore.

Supreme Court Justice Kagan (28:23):

Yeah, I mean that doesn't seem like much of an as-applied challenge, you have to prove the exact same thing as you do in a facial challenge, but don't worry because you only get relief as to you. So that's, that's not a true as-applied challenge.

General Alan Hurst (28:35):

And I'm having trouble coming up with what it could look like because it will always be possible to carve the class down further. I mean, so if they say that their class, their subclass, I guess subclass of males is males who identify as transgender, then we would come back and say, "Well, only something like 10% of males who identify as transgender take the testosterone suppression." And then they might say, "Well, okay, no, the class is just the males who take the testosterone suppression." And then we might come back and say, "Well, according to the record, according to their own expert of males who take testosterone suppression, only one quarter of them are able to achieve the appropriate … Able achieve ordinary levels of testosterone for women, and the other three quarters would still have an advantage and therefore we'd be justified 75% pretty good fit in intermediate scrutiny and we'd be justified with the law."

(29:22)
But then they can just change the class again. They can say, "Aha, no, our class is males who identify as transgender who suppress their testosterone and who suppress their testosterone successfully and are able to get it down to where they don't have a competitive advantage." And at that point we can say, if you can define the class so precisely, you're going to force the state to define the class that precisely it's going to be enormously burdensome for everyone and the state can never win because whenever the state points to the fit in the statute, they just redefine their class as only the people who are outside the fit.

Supreme Court Justice Kagan (29:53):

Thank you.

Speaker 2 (29:54):

Justice Gorsuch? Justice Kavanaugh?

Supreme Court Justice Brett Kavanaugh (29:57):

To follow up on something you were talking about with Justice Sotomayor, would your constitutional position be different if the law explicitly stated that transgender women and girls cannot participate in women and girls sports?

General Alan Hurst (30:14):

My answer to that depends on what's in the rest of the law. So I would refer back to Skrmetti and say, it's not a magic words test, the mere presence of the word transgender in the statute is not enough to make it a transgender-based classification.

Supreme Court Justice Brett Kavanaugh (30:28):

What would make it?

General Alan Hurst (30:29):

If the law either expressly or through its effect, let all males accept males who identify as transgender participate in female sports, but made it so that somebody's ability to play in female sports depended on transgender identity-

Supreme Court Justice Brett Kavanaugh (30:43):

Assume that the law does not allow males to play in women's and girls sports and then explicitly says, a separate provision, transgender women and girls, biological males who identify as female cannot play in women's and girls sports, would your constitutional position

Justice Kavanaugh (31:00):

… position be any different in that situation?

General Alan Hurst (31:02):

No, your Honor. I think that's Skrmetti. I think that would be a reference to transgender identity, but the law's application would never turn on transgender identity, so it wouldn't be a transgender status.

Justice Kavanaugh (31:11):

Even if it says transgender?

General Alan Hurst (31:12):

The word transgender in the statute might be relevant to a pretext analysis, but it wouldn't be relevant to facial classification if that word did not change how that statute applied in practice.

Justice Kavanaugh (31:21):

How many states allow biological males who identify as females, transgender women and girls to play in women's and girls sports?

General Alan Hurst (31:33):

Statutorily, I'm aware of 27 states that take our side and do not permit that and 23 states that take the other side and do permit it.

Justice Kavanaugh (31:40):

And those states who do allow it, is your position that they are violating the constitution, the Equal Protection Clause, rights of biological girls and women by allowing that or do you say that's up to each state to decide and that the constitution gives discretion to the state whether to allow it or not to allow it?

General Alan Hurst (32:07):

I have not yet been persuaded by a constitutional theory that would let us use the Equal Protection Clause to impose our policy on other states in this matter.

Justice Kavanaugh (32:12):

Okay.

Speaker 3 (32:18):

Justice Barrett.

Speaker 4 (32:20):

I have some questions about the implications of your theory. So how would your theory play out if we're talking about six-year-olds where there's no difference between boys and girls in terms of athletic ability, testosterone levels, et cetera? Could you have sex-separated teams then, or sorry, sex-separated teams by biological sex and not allowed trans girls on there?

General Alan Hurst (32:43):

Certainly, your Honor. First I'd like to explain how the statute applies to that situation so I can put my answer in context. There are no six-year-olds in the state to whom the statute applies because there are no school sponsored.

Speaker 4 (32:53):

That's why it was a hypothetical.

General Alan Hurst (32:54):

Okay. Right. Yes, it would be the normal intermediate scrutiny analysis. And are we saying it applies only to six-year-olds or to everybody across the board?

Speaker 4 (33:03):

Well, I'm just trying to give you a hypo… I mean, yours is driven by testosterone levels and differences in athletic capability. So I'm asking you, what if you try to take that out of the equation and you're just drawing the line based on biological sex and saying that trans girls can't be on the girls team in an age group that's prepubescent.

General Alan Hurst (33:23):

The record in this case does not support the notion that males lack an athletic advantage at six years old. That's about as early as the science goes from what's in the record. And even at that age, males have about a 5% athletic advantage over girls in most situations. Now, if this is not a level of competition where anybody cares about that, the simple solution is the solution you see in most places, which is you have co-ed sports, you don't divide the teams based on sex and everybody can play and Idaho's law does nothing to interfere with that.

Speaker 4 (33:49):

And remind me whether Idaho's law, and I guess your answer made me think of this, and I guess this goes to the question of whether the law discriminates on the basis of trans status. Is it true that biological girls, trans boys can play on boys teams?

General Alan Hurst (34:04):

Anyone can play on boys teams, your Honor.

Speaker 4 (34:05):

Anyone can play on boys teams. Okay, and to this point about medical uncertainty and scientific uncertainty, you were talking about what advantages you might have even that are apart from testosterone levels. Your friends on the other side say that, listen, science is uncertain and so we need more factual development. It's not really clear how much of an athletic advantage boys and men have if their testosterone levels are below a certain point. How does that play out? Tell me why we don't need more fact finding or what does the state's burden in showing what the state of scientific certainty is? Do we have to defer to the state? Presumably at some point if deference is due, the state would have too little scientific evidence to really get that deference. Tell me how to think about that.

General Alan Hurst (34:47):

The first question would be are we applying intermediate scrutiny and we argue that the court shouldn't, but leaving that aside, if the court is applying intermediate scrutiny, then we'd say it's Turner Broadcasting that says the legislature, first-memory case applied intermediate scrutiny and said under intermediate scrutiny, the legislature has to draw reasonable inferences from substantial evidence. It does not need to act only on scientific consensus, which is what the district court in this case assumed incorrectly.

Speaker 4 (35:13):

Thank you

Speaker 3 (35:14):

Justice Jackson.

Speaker 5 (35:16):

So I guess I'm going back to your discussion with Justice Kagan. I am not sure I understand why you're characterizing the as-applied challenge in practice as the individual coming back and proposing a different classification as though we're doing an analysis of the classification in the way that you suggest. I thought that the state has a classification that is its general rule. No individuals who identify as female but were sex at birth male can play in women's sports. And that the individual then is merely seeking an exception based on their individual capacity because the state's general rule is based on fairness and medical science and all of these things. Do I have this? They're not proposing an alternative class necessarily. They are just saying that I should be excepted from that general rule on this basis.

General Alan Hurst (36:40):

We agree that an exception is what they are seeking, your Honor, and it's an exception based on transgender status again.

Speaker 5 (36:45):

But that's the way the rule used to work. I just want to be clear about what we're talking about here.

General Alan Hurst (36:51):

Sure.

Speaker 5 (36:51):

I understood that this law originally was exactly that. That you basically said no transgender women in girls sports, but we'll look at your evidence and look at your circumstances and decide whether or not you individually can be included. Is that what used to happen?

General Alan Hurst (37:12):

As a matter of Idaho law, there was no law whatsoever before this.

Speaker 5 (37:16):

Is that what was happening on the ground in Idaho law?

General Alan Hurst (37:18):

That's what NCAA policy permitted from 2010 to 2022. Before 2010, the NCAA policy matched ours. Since 2025, the NCAA policy has matched ours.

Speaker 5 (37:29):

Okay, but what I'm asking is if is that's the ask here, not that all transgender women be allowed, but that this particular plaintiff be allowed based on their circumstances, why is that so not administrable or proposing a different classification that we are not going to be able to sustain? I don't understand.

General Alan Hurst (37:53):

So first as to administrability, your Honor, making sure that a transgender athlete does not have an unfair advantage would require ongoing testosterone monitoring because certainly testosterone can fluctuate. That is invasive, that is intrusive.

Speaker 5 (38:07):

That's the burden of the person. The person who wants to play. He has to demonstrate to you to whatever degree of scientific certainty that they don't have a competitive advantage. Why would you not allow that? I guess I don't understand.

General Alan Hurst (38:23):

The second answer is that there's nothing in that argument that limits itself to transgender identifying athletes. If this athlete doesn't have an advantage over women and therefore can compete safely, then there are other athletes that could say for different reasons that they don't have an unfair advantage and therefore they could compete safely.

Speaker 5 (38:40):

Yes, I understand that and there are legal arguments. Let me ask you something about the classification. I guess I'm struggling to understand how you can say that this law doesn't classify on the basis of transgender status. The law expressly aims to ensure that transgender women can't play on women's sports teams. So why is that not a classification on the basis of transgender status?

General Alan Hurst (39:07):

I apply Skrmetti again, the question is whether the application of law turns on transgender status and it doesn't, it turns on sex. The legislature did not want to exclude transgender people from sports. It wanted to keep women's sports women only and exclude males from women's sports.

Speaker 5 (39:21):

No, I understand. But with respect to two individuals, a cis woman and a trans woman who both want to play on a team that reflects their gender identity, this law operates differently based on their sex, right?

General Alan Hurst (39:41):

The law does operate differently based on their sex as your Honor just said. It does not operate differently based on their transgender identity.

Speaker 5 (39:48):

But it treats transgender women different than cis women, doesn't it?

General Alan Hurst (39:54):

It has a disparate impact because men who identify as transgender have a different reason for wanting to play women's sports than biological females do, right. But if that were enough, then Skrmetti would've come out a different way, [inaudible 00:40:10] would've come out a different way, other cases would've come out a different way. I'm blanking on the other ones.

Speaker 5 (40:14):

Right. Finally, let me just ask you about mootness because it's a little odd. I think that a defendant would not want a case dismissed. Ordinarily the defendant is the one who's claiming mootness because they've been sued. So this plaintiff has brought a claim against you and the claim relates to your policy about college sports. And as I understand, the plaintiff is about to graduate, so wouldn't we have a mootness problem potentially notwithstanding any representations that the plaintiff made?

General Alan Hurst (40:52):

I don't think so, your Honor. I'd look to Camreta as the best case for telling us how we analyze mootness in this situation. Does the petitioner still have an interest in continuing the litigation-

Speaker 5 (41:03):

Only for a few more months. What if this decision doesn't come out until June and she graduates in May?

General Alan Hurst (41:09):

It's my understanding at this point, I defer to my friends here. It's my understanding at this point that May graduation is not possible.

Speaker 5 (41:16):

For this individual?

General Alan Hurst (41:17):

For this individual. That's correct.

Speaker 5 (41:18):

All right, thank you.

General Alan Hurst (41:19):

Thank you.

Speaker 3 (41:20):

Thank you counsel. Mr. Mupan.

Mr. Mufan (41:28):

Mr. Chief Justice, and may it please the court. 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 eliminated 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 may not treat them the same. I welcome this court's questions.

Speaker 7 (42:35):

Would you elaborate on what you alluded to and that is that whether or not a state has to its asserted interest in classifications has to bear out in each individual case. That seems to be what the applied challenges in individual cases would require.

Mr. Mufan (42:57):

That's right. So intermediate scrutiny requires a substantial relation or a reasonable fit, which is not a perfect fit. And this court has recognized, and I'd point this court to Edge Broadcasting in particular, it focused on this exact issue of if the law is substantially related in general, can an individual come in and say, well, as applied to me individually it's not. And the court said, no, we're not going to allow you to do that because that would essentially convert intermediate scrutiny into strict scrutiny on an as applied basis. Now, I'm not disputing that you can sometimes bring as applied claims under intermediate scrutiny. So if for example, you had this sort of law that applied to sports but also math and also chess, it might be that as applied to math or chess, it was invalid, but it was valid as to sports because for math and chess at the level of the classification, it's not recently tailored. But here critically, everyone agrees that for sports, for 99% of men, it's reasonably tailored. It's just the 1% of trans-identifying individuals who take drugs and then those drugs are effective that's the problem.

(44:03)
And this court's decision in Michael M makes clear that that's not a viable as applied claim. In Michael M, this court upheld a statutory rape law that applied differently to men than women and the rationale was because women faced a unique risk of pregnancy. But of course if either the male rapist or the female victim was infertile, there'd be no pregnancy. So on their theory, you could have come in and said, well, I have an as applied claim that I was infertile, so it was okay to rape the underage girl. And this court not only rejected that, the court said it would be ludicrous, ludicrous to say that you could bring an as applied claim for pre-pubescent girls. That's just not the way as applied scrutiny works in intermediate scrutiny cases.

(44:47)
That's equally true as my friend said in Nguyen. In the court's decision in Nguyen, the justification for the law was making sure that the parent knew that they were the parent and had an opportunity to have a relationship with the parent. But Nguyen's father knew about the birth, was present with Nguyen the whole time and brought Nguyen to the United States. Nevertheless, the court held for the class of men overall, it was recent tailored and they weren't going to focus on the specific facts of Nguyen.

Speaker 6 (45:17):

You started Mr. Mupan by saying that you did think that there were as applied equal protection challenges and giving an example of, well, if it had also applied to the chess team or something, but that doesn't seem like an as applied challenge to me. That seems as though there's just a provision of the law that's facially invalid. So let's put those kinds of cases aside where you can split the law up and say this part is facially invalid, this part isn't and focus instead on real as applied challenges. Your classification is basically, okay, let's pause it because there's a substantial relationship to your goal. Is there ever a time where a person can come in either on behalf of herself or on behalf of a subclass and say not notwithstanding that there is no valid facial challenge here, there is an as-applied challenge. This subclass has to be exempted.

Mr. Mufan (46:20):

I don't think this court's cases have ever squarely addressed that. I think if it could be brought, it would have to be a very substantial percentage. So to give you a stylized hypothetical, if you had a law that regulated on the basis of sex, and you could imagine three subgroups of males, for subgroup one and subgroup two, each of whom were a third of men, it was reasonably tailored. But for subgroup three, which was a third of men, it wasn't. Maybe in a circumstance like that, the third subgroup could come in and say, for a third of the applications of this law, it's not reasonably tailored. That's not enough of a substantial fit. At least for us, even if you're going to uphold the law for the other two thirds of that.

Speaker 6 (46:59):

But why does it have to be that many people? Why? Why? I don't understand why that subclass can't make this showing and get the remedy as to them.

Mr. Mufan (47:05):

Because if it's one person, you're basically converting the law into strict scrutiny.

Speaker 6 (47:09):

But you're not. You're not. I mean because what you're doing is you're allowing that individual to get the remedy that we've said in cases like CASA is the only thing that's available. That you can't have this flow to everybody. It's just about this individual and whether or not he's been unconstitutionally treated.

Mr. Mufan (47:29):

So again, because if the law is reasonably tailored for 99.99999% of people and you've come up with a point fraction percent and say that that person has a viable claim, that's more than you would ever require under strict scrutiny. I don't know if any-

Speaker 6 (47:44):

No, but I mean, well what's the result of that? If you're making a facial challenge, I understand that you're saying that if the law has such a broad sweep of constitutionality, then we're not going to strike this thing down just because we can identify one person for whom it doesn't apply. But if you are that one person and you can show that this is unconstitutional as applied to you, I guess I don't understand why it matters that it's constitutional as applied to 99.9% of the other people.

Mr. Mufan (48:16):

Well, because I think you're begging the question when you say it's unconstitutional applied to you, laws that classify on the basis of sex only need to be reasonably related. And so if it's reasonably related because it's tailored for 99% of people, then it is constitutional even applied to-

Speaker 6 (48:31):

Even as applied to, see you are saying there is no such thing as applied intermediate scrutiny challenge.

Mr. Mufan (48:36):

No. Again, if there was one where it was a third of the people, I can maybe understand a claim that the third of people, it's not reasonably related for them, even though it is for two thirds of the people. I'm just saying that when the numbers get as small as they are here, that claim's not viable and we know that from this court's cases. Again, Michael M every infertile man and every victim.

Speaker 6 (48:56):

No, I understand, but we didn't do that same kind of quantitative analysis in Caban, right? We didn't ask the husband in Caban to figure out where he stood relative to all husbands to whom this was applied.

Mr. Mufan (49:11):

Right. So yeah, let me talk about both Caban and Lair. So Caban is not an as-applied challenge. Caban did not say that there were some set of people for whom that law was valid. The differential treatment on-

Speaker 6 (49:23):

Itself, Lair said that about Caban.

Mr. Mufan (49:26):

So what Lair held was the father and Lair had abandoned the child. And what Lair essentially said is if the mother had abandoned the child, the mother wouldn't get a veto.

Speaker 6 (49:34):

Can I read to you what Lair said about Caban? Discussing Caban, Lair explained, "We have held that these statutes may not constitutionally be applied in that class of cases where the mother and father are in fact similarly situated with regard to their relationship to the child." So Lair is interpreting Caban as an as-applied challenge, isolating a subset of people where there's not actual similarly situated circumstances. And Lair is different. It is a facial challenge. It is an opposition. No?

Mr. Mufan (50:11):

That sentence in Lair, the facts of Lair, there was no differential treatment. The father and Lair had abandoned the child and the court basically rejected his claim because if a mother had abandoned the child, the mother also wouldn't get a veto. So Lair's a case where the plaintiff lost because there was no differential treatment at all. Caban is a case where the plaintiff won because the classification couldn't be justified. The only way those cases would support their position is if either Caban or Lair had said there is some set of cases where the woman gets a veto but the father doesn't and that's fine. And neither Caban nor Lair said that. This court has never said in those line of cases that the mother could get a veto but the father doesn't and that's perfectly okay. So that's what they're arguing and neither of those cases support it.

(50:57)
You'd also ask about VMI, so if I could just briefly address why VMI doesn't support them either. In VMI the point was yes, lots of women wouldn't want to go to VMI, but also lots of men wouldn't want to go to VMI. As to the set of people who were actually burdened by the exclusion, all of the women, the law was not fairly tailored. The argument that Virginia was making VMI was essentially equivalent to the following. If MIT said, you know most women and frankly most men can't meet our math and science standards, so we're just not going to allow women to come to MIT at all, of course this court would reject that argument. That was the argument that they were making in VMI that just very few women wanted to attend. But for the set of women who wanted to attend, the law was not properly tailored because there was no justification for excluding them.

Speaker 4 (51:47):

Thank you counsel. Justice Thomas. Justice Alito.

Speaker 7 (51:51):

Under Title IX, what does the term sex mean?

Mr. Mufan (51:55):

We think it's probably interpreted pursuant to its ordinary traditional definition of biological sex, and I think probably given the time it was enacted, reproductive biology is probably the best way of understanding that.

Speaker 7 (52:06):

Thank you.

Speaker 3 (52:07):

Justice Sotomayor.

Supreme Court Justice Sotomayer (52:08):

You know the problem I'm having with what you're doing now is you're doing exactly what Justice Stevens said should be done, and he admitted later in O'Connor that the court roundly rejected that in Caban and Lair. He wanted to do exactly what you said. He said, "In dissent, this court should be analyzing equal pretension, contending that if the classification is justified in those cases in which the rule has its most frequent applications, then it doesn't violate equal protection." And then he said, "The court should presume that the law is entirely valid and required to challenge or to demonstrate that its unjust applications are sufficiently numerous and serious to render it invalid." That's exactly what you said we should be doing.

(53:05)
So you want us to accept what the dissent did and not what the majority said it was doing in Caban and Majoue. In VMI, justice Scalia said the same thing, that taking the majority's logic to its logical conclusion, a single woman who wanted to attend and satisfy the admissions requirement would be enough for an as- applied challenge and that shouldn't be the law. You're asking the court to adopt views expressed by two minority dissenting judges in this case. We've been doing an awful lot of that lately. You're smiling because it's true, but you're asking us to adopt an approach that we have rejected as a majority court and accept what dissenters are doing, correct?

Mr. Mufan (53:58):

With all respect, no. Again, in Caban, nowhere in the majority opinion in Caban did they say this law is reasonable for certain classes of ban. But it's not-

Supreme Court Justice Sotomayer (54:09):

But it did exactly. It said it's reasonable for fathers who don't support their children, it won't be reasonable for fathers who don't.

Mr. Mufan (54:24):

With all respect, your Honor, it did not. Caban did not uphold that law as applied to any man who hadn't abandoned their child. Now it is true Lair upheld the law for someone who had abandoned their child. But the reason it upheld the law is because of women who abandoned their child-

Supreme Court Justice Sotomayer (54:42):

But the logic of the opinion is that if the reverse had been true, it would've ruled the way it did.

Mr. Mufan (54:48):

I don't think that's true. But even if you thought that was, sorry.

Supreme Court Justice Sotomayer (54:51):

No, I just have one last question. What's percentage enough? There are 2.8 million transgender people in the United States. That's an awfully big figure. I do understand that in Idaho, this was the first transgender child, but that just happenstance as to location. What makes a subclass meaningful to you? Is it 1%, 5%, 30%, 15%, one is not enough for you, but why?

Mr. Mufan (55:21):

Well, so I'll say-

Supreme Court Justice Sotomayer (55:22):

When the numbers don't talk about the human beings.

Mr. Mufan (55:26):

So I'll say a couple of things about that, your Honor. The first I'll say is if the distinction between intermediate scrutiny and strict scrutiny is the difference between a perfect fit and a reasonable fit, 1% surely has to be on the side that's reasonable. But if you don't want it, just take the 1% on its own face, I would point your court you want to focus on majority opinions or opinions for the court. Michael M. rejected a challenge even though that law wouldn't for infertile couple, infertile either infertile rapists or infertile victims, the justification didn't apply. There are certainly more infertile people-

Supreme Court Justice Sotomayer (56:00):

But if they did it on a different basis, which had to do with different harms-

Mr. Mufan (56:05):

No, that's not true your Honor-

Supreme Court Justice Sotomayer (56:06):

… to your previous.

Mr. Mufan (56:06):

With all respect-

Supreme Court Justice Sotomayer (56:08):

Well, I can read the decision and tell you.

Mr. Mufan (56:09):

With all respect, that paragraph it says,"Even setting aside the physical differences, it is ludicrous to think we have to exclude infertile children from this rape law," and there are certainly more infertile people than there are trans-identifying individuals who take these drugs and eliminate all their physical advantages. So if we just focus on holdings of this court, we know that this percentage is too small.

Speaker 3 (56:33):

Mrs. Kagan.

Speaker 8 (56:35):

Mr. Mupan, just assume with me that there is such a thing as a as-applied equal protection challenge. What would it take to bring that challenge? What should the plaintiff have to show?

Mr. Mufan (56:46):

I think they would have to show that A, they are a substantial enough percentage to be able to bring an as-applied claim. And then as to that group, the law wasn't reasonably tailored for that

Speaker 8 (56:58):

And that they would have the burden on that. It's not for the state, the state does not have to satisfy that burden initially.

Mr. Mufan (57:09):

Certainly not the first of the two things I said, I think if you thought that you could have a valid as-applied claim and they had made it through the gate of saying they were a big enough class, then I think consistent with normal intermediate scrutiny, I think the state does bear the burden of showing justification for that class. So I think the state would have it on the second step. The plaintiff would have it on the first step.

Speaker 8 (57:29):

I see. So they have to sort of get through the gate of we're big enough for you to take us seriously, but then the state has it.

Mr. Mufan (57:35):

I think that would be how you would analyze it.

Speaker 8 (57:38):

And I think you were asked this, but big enough to be taken seriously. How do we decide that?

Mr. Mufan (57:44):

Again, the court's cases haven't really talked about it. I think the way I would think about it analytically is the difference between intermediate scrutiny and strict scrutiny is the difference between a perfect fit and a reasonable fit. So is there enough of a group here that we think that we're not essentially holding the state to perfection? If it's so close to perfection, then you're really undermining the difference between the two. If it's a big enough group that we're not asking for-

Speaker 8 (58:08):

I mean are you really undermining the difference between the two? Because usually we think of the difference between the two with respect to facial challenges. So you have to do a whole lot less to show that the facial classification that you're making is okay.

Mr. Mufan (58:23):

I don't think so. I do think that you would very much be undermining the difference between the two if you said that even a single person could bring an as-applied intermediate scrutiny case. And again, I would urge your Honor to read Edge Broadcasting. There's a whole section of the opinion that's on this exact issue and says exactly what I'm saying. Now, admittedly, it's a First Amendment case, but it's an intermediate scrutiny First Amendment case.

Speaker 8 (58:43):

Thank you.

Speaker 3 (58:45):

Mr. Gourshen.

Speaker 9 (58:47):

If the class is big enough in your discussions, say a third as you discussed, might it just fail intermediate scrutiny, facially? I mean at some point do they collapse?

Mr. Mufan (58:58):

So I agree that that's part of why these are so unusual. If there's a big enough group that you've excluded, you are exactly right. It might not be reasonably related as a whole, and so then it facially fails. But I could at least conceptualize a situation where it covers enough people validly that a facial challenge fails. But if it covers a big enough group that it can't be justified for. Then maybe you could bring an as-applied claim. I don't think this court really needs to grapple with these fairly tricky analytical questions because this is the world's easiest as-applied claim to reject. It is a fraction of a percent. Whatever as-applied claim you could bring, it cannot possibly be a fraction of the percent, that would be totally inconsistent with this court's decision. Michael M. And Wynn, both of which rejected claims by people who had a much greater percentage than a fraction of a percent.

Speaker 9 (59:52):

As you know, a lot of states allow biological males who identify as female transgender women and girls to play in women's and girls sports. And you heard Idaho say that the states, those states, other states constitutionally, may allow that consistent with the Equal Protection Clause. Do you agree with that?

Mr. Mufan (01:00:16):

We've been challenging those laws under Title IX in lower courts, and as we said in our brief, we would urge the court to just reserve judge-

Speaker 9 (01:00:21):

Can you answer the Equal Protection Clause question that I just asked?

Mr. Mufan (01:00:26):

I'm not sure if we've taken a position on the equal protection piece.

Speaker 9 (01:00:29):

Do you have a position?

Mr. Mufan (01:00:30):

I don't right now. I'm sorry.

Speaker 9 (01:00:31):

Okay. And on Title IX, footnote two of your brief seem to say that you don't have a position on how Title IX applies to those states as well?

Mr. Mufan (01:00:41):

No. So we are actively litigating in lower courts and we are saying that they are violating Title IX. What the footnote said is it's a very different question. We would urge this court to make clear it's not resolving that question one way or the other by what it says in this case.

Speaker 9 (01:00:55):

Okay. So you have a position on it, but you don't want us to say anything about that issue.

Mr. Mufan (01:01:00):

Right. It's a very different question analytically and so-

Speaker 9 (01:01:03):

I understand. That's why I'm asking.

Mr. Mufan (01:01:04):

Yes. Yeah.

Speaker 9 (01:01:05):

Okay, thank you.

Speaker 3 (01:01:06):

Justice Barrett.

Speaker 4 (01:01:08):

So Mr. Mupan, when Justice Kagan started asking the questions early on about the as-applied Equal Protection challenges, she pointed out that there was kind of a surprising dearth in the case law really grappling with this, but I think you wouldn't be getting all the questions that you're getting about Caban and Lair and Michael M. And VMI if it weren't the case that you can read some lines of cases either way. So let's say that there is this uncertainty, we haven't really confronted it. As far as I can tell, it's because it just wouldn't be relevant in strict scrutiny because it's often fatal and are typically almost always fatal in fact. So it's really an intermediate scrutiny problem. Maybe it's a rational basis problem too. I mean, maybe this would have implications for all kinds of review. Because it seems to me that if you're never talking, in any case in which scrutiny is not talking about a perfect fit, you might have this problem.

Speaker 10 (01:02:00):

What would it do essentially? I'm just trying to think about the ramifications of allowing as-applied challenges. It seems like it's at war with the theory of intermediate scrutiny for some of the reasons that Idaho said, because all lines, all classifications overshoot or undershoot, right? So can you imagine how intermediate scrutiny works? This isn't designed to be a layup or something, it's honestly just something I'm grappling with. How would it even work going forward?

Mr. Mufan (01:02:27):

So I'm not sure I can say a whole lot more than what I've already said, which is I do think it's a problem. The reason I think it's a problem is it's conflating the difference between strict scrutiny and a perfect fit, intermediate scrutiny and a reasonable fit. And I worry that if you allow as-applied claims to a small enough group, you're essentially collapsing the difference because you're essentially requiring a perfect fit. Because whenever you have a reasonable but not perfect fit, the subset who falls within that will come in and bring in as-applied claim. And so the state will essentially have to have perfectly tailored laws because any single person for whom you don't have a perfect fit could come in and bring in as-applied challenge.

Speaker 10 (01:03:08):

Including, say, boys who just couldn't make the team because they weren't good enough, because the law to the extent that it's designed to protect competitiveness and safety, et cetera, wouldn't pose the same danger in the case of a boy who just isn't good enough to make the male team, but perhaps could make the girl team?

Mr. Mufan (01:03:25):

At least arguably, depending on what their exact theory is-

Speaker 10 (01:03:28):

Definiteness.

Mr. Mufan (01:03:29):

… for the justification.

Speaker 10 (01:03:30):

Thanks.

Speaker 13 (01:03:31):

Justice Jackson?

Speaker 12 (01:03:32):

Yes. I'm still struggling to understand why the state would have to have perfectly tailored laws. 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 doesn't apply to them.

Mr. Mufan (01:03:50):

Right. So making exceptions is tailoring your law. That's literally what it means to tailoring your law.

Speaker 12 (01:03:54):

No, but yes, from the standpoint of a facial challenge, when we're asking whether this law has to be stricken completely because it isn't perfectly tailored, what we're doing is a different exercise in the as-applied challenge. We're asking whether even though this law is overbroad, we are assuming it's overbroad now because you've got in there some people to whom it should not be applied. What do we do about that? What is the remedy that those people can get? And what I hear you saying is they get no remedy unless they can demonstrate that there are enough people that this is sufficiently overbroad that it's no longer something the state can do.

Mr. Mufan (01:04:35):

Right.

Speaker 12 (01:04:36):

And I don't understand why that is. Why wouldn't, when we identify people for whom this law operates unconstitutionally, that's the premise because now I'm in remedy. Right? The premise is that you have a person who's successfully made an as-applied challenge. This to me, unconstitutional. You say too bad unless you can show that it's also unconstitutional with respect to a sizable number of other people. And I don't understand why that's the case.

Mr. Mufan (01:05:04):

Because I don't agree with the premise that the law operates unconstitutionally as to an individual person just because the justification for the law doesn't apply to that person. That's what this court held in both Nguyen and Michael M. It recognized that the justification that was put forward for the law might not be true for each and every person the law applied to, but this court said that's fine.

Speaker 12 (01:05:29):

And if we read Caban and Lair to say something different, if I disagree with you, then we just…

Mr. Mufan (01:05:34):

Well, Nguyen is the most recent of the cases. So even if you read the cases that way, and Nguyen is explicit about this, Nguyen explicitly says, I believe it's… I'm not going to get the page number right. Nguyen explicitly says that we recognize that there are some men who were present at the birth of their child who have a DNA test approved that the father that have been with their kids their entire life. In fact, that was probably true of Nguyen's father. Tough luck, you lose.

Speaker 12 (01:05:58):

Okay. So Justice Barrett is worried, I think she said about the implications of allowing as-applied challenges. I guess I am worried about the implications of not, because as Justice Kagan said, we have consistently said that facial challenges are really hard to get that as-applied is really all there is. So now we're in a world in which you are setting up new barriers, in my view, to establishing an as-applied challenge. So at the end of the day is your position that no matter how clear it is that the particular prescription is operating to disadvantage a particular group that classifies you, treats you differently, you're just not going to be able to get a remedy for that individually anymore.

Mr. Mufan (01:06:47):

Let me take a step back and then maybe this will help. Laws that classify in general are subject to rational basis review. Now, there's higher scrutiny for classifications on some things. For race, we have strict scrutiny. For sex, we only have intermediate scrutiny. What that means is it is okay to have a classification that doesn't operate perfectly for each and every person. So it's not, the problem is that it's unconstitutional, but there's no remedy. The point is that it is constitutional even though it's overbroad.

Speaker 12 (01:07:20):

I don't necessarily think that's the takeaway. I think what that means is it's okay because we realize that in some circumstances, maybe even in many circumstances, this classification is justified. But when we can identify a situation in which it's not, I don't understand why a person can't bring that challenge.

Mr. Mufan (01:07:37):

I can't say anything better than in both Michael M. and Nguyen. The court recognized that there were people who wasn't held for-

Speaker 12 (01:07:42):

Got it.

Mr. Mufan (01:07:43):

… and they didn't give them a remedy.

Speaker 12 (01:07:44):

Thank you.

Speaker 13 (01:07:45):

Thank you, counsel. Ms. Hartnett?

Ms. Hartnett (01:07:53):

Mr. Chief Justice, and may it please the court, Idaho concedes that HB 500 draws a sex-based line by categorically excluding all students with a biological sex of male from women's teams. Sex classifications like that are closely scrutinized under the equal protection clause to ensure they rest on evidence not supposition. Idaho's articulated justification for this line is to protect women's sports from birth sex males because of their "biological advantages".

(01:08:21)
That means HB 500 is aimed at controlling for sex-based biological advantages, not for all of the many reasons one athlete may be better than another that have nothing to do with sex. On the preliminary record in this case, and as the experts below agreed circulating testosterone after puberty is the main determinant of sex-based biological advantage that HB 500 sought to address.

(01:08:44)
And on this record, Lindsay Hecox has mitigated that advantage because she has suppressed her testosterone for over a year and taken estrogen. HB 500, thus fails heightened scrutiny as-applied to Lindsay and transgender women like her who have no sex-based biological advantage as compared to birth sex females.

(01:09:02)
That analysis would come out the other way for the untalented cisgender boy, he would have the same sex-based advantage, the circulating testosterone, he just would not be as good at sports. It also would come out the other way here, for example, if a transgender woman had gone through a male puberty and had not mitigated that advantage. This court's cases have recognized that when the government's justification for a sex-based classification does not apply to a discrete subgroup of those classified, that classification is unconstitutional regarding that subgroup and that holding in Caban, which I'm sure we'll discuss further, has been repeatedly referred to and reaffirmed including more recently than Nguyen and Morales Santana.

(01:09:42)
Because the court can affirm based on sex discrimination, it's not necessary to reach the question of transgender status discrimination, but HB 500 also fails on that basis. If the court does not find the case moot, the preliminary injunction should be affirmed. I welcome the court's questions.

Speaker 14 (01:09:57):

All right. Couldn't you make a similar argument with respect to Title IX itself and the sex difference, the fact that you can have male and female sports?

Ms. Hartnett (01:10:12):

No, Your Honor. So I think the question would be, would the sex line that's drawn in sports and that's a line that does exist as a commonplace line, is that substantially related to the important state interest-

Speaker 14 (01:10:23):

Well, you could have individuals who, for example, don't present the problem of physically outmatching women in a particular sport or a group of people who don't.

Ms. Hartnett (01:10:36):

Right. And the broader goal here of course is not sex separation for its own sake. The idea is to have equality in sports and that's the ultimate objective that I think we're all talking about, not separation for someone's sake.

Speaker 14 (01:10:46):

Well, my point is the argument that you're making now with respect to the subcategory, could it not also be made with respect to the sex separation in Title IX generally?

Ms. Hartnett (01:10:59):

Occasionally there have been examples of a boy challenging the separate teams because they are [inaudible 01:11:04] access to a team that's not available for the boys because of the way Title IX works. To be clear, we're not aware of example of somebody a boy challenging the sex separation so that they can be on the girls team where there's a boys team that exists. In that case, the courts do look at that under intermediate scrutiny and they determine that the overall goal of ensuring equality in sport opportunity for women and men allows for the distinction.

Speaker 13 (01:11:29):

Counsel, I wonder if you could address what has been, I think the basic focus of the discussion up till now, which is, as I see it anyway, whether or not we should view your position as a challenge to the distinction between boys and girls on the basis of sex or whether or not you are perfectly comfortable with the distinction between boys and girls. You just want an exception to the biological definition of girls.

Ms. Hartnett (01:11:57):

Thank you, Your Honor. We're not asking for a particular definition or even really an exception. I think what we're asking for, it is similar to the nature of the challenge that was bought in Caban there. So the situation there where there're unmarried fathers that were barred completely from objecting to their child's adoption and there the father said, "We'd like to be able to have that objection. We have a substantial relationship with the children." And there was actually a pretty tailored group in that case.

(01:12:23)
In Justice Stevens' dissent, he points out it has to be an older child and there has to be a participation in the rearing for that subgroup. They were allowed to challenge that and get the relief. And so I do note too that Justice Stevens pointed out that it was an indeterminately small subgroup of an unknown number of fathers. So I think that's the analogy that we would draw here to what we're asking.

Speaker 13 (01:12:43):

So what would be the appropriate inquiry? And it's asking you basically for your response to Mr. Mooppan in particular that going challenge by challenge, whether it's based on transgender status or anything else in the situation is really transforming intermediate scrutiny to strict scrutiny.

Ms. Hartnett (01:13:05):

We agree there would have to be a group. In our view in a way, at least the way that the cases have worked out, and this is Caban and Lehr. It also goes through Nguyen and Morales Santana. I would also direct the court to the illegitimacy or the non-marital children case. Those are Trimble and Lalli. They're cited in the BPJ brief. In the same way I think the court looks, is there a definable group that's not just a person who happens to not meet the fit, but actually a group where the rationale doesn't make sense for the subgroup.

(01:13:33)
But the group can be somewhat specific. Like in the case of Caban, it was actually unmarried fathers who had acknowledged paternity and had a substantial relationship. In the Trimble case it was non-marital children who had had a confirmation of paternity and a relationship with the father.

Speaker 13 (01:13:50):

Well, that sounds an awful lot like strict scrutiny. Unless you're going to say whenever you can come forward with anything that is an exception to the boy-girl distinction. In any case at all, you can go forward with the strict scrutiny challenge, whether it's 1% or whether it's 12 people. And I'm just not quite sure grasping why your position isn't really an effort to apply strict scrutiny to a distinction that we haven't applied it to.

Ms. Hartnett (01:14:25):

Thank you, Your Honor. And I do agree that cases are not that many in this context. I think it's possibly because facial challenges were more in vogue before and now as-applied challenges are more preferred. And so that may be explaining why a statute in Caban for example, wasn't viewed as carving out the statute for the people it couldn't be applied to versus facially invalidating it. But I do think it matters because it's not just a matter of fit that makes intermediate scrutiny different. There also has to be an important government interest, not a compelling one. And this is really critical. You can burden the right in intermediate scrutiny.

(01:14:56)
So in Nguyen for example, that person failed because he actually didn't take the steps that would be needed to confirm the paternity. So you're allowed to actually… He may have had a compelling case on a one-off basis that, "Hey, I actually do have that relationship with the citizen father when I was born abroad." But he didn't take the steps that he needed to do. The same thing with Lehr and the same thing with Lalli in the Trimble-Lalli line. So you can actually burden the right by saying Lindsay Hecox has to actually submit testosterone tests or something else different than other people. And that would not be a lot if it were strict scrutiny.

Speaker 13 (01:15:26):

And if we follow your approach, which allows a challenge to even a fairly small group that's affected, in what way would we not… That would apply across an entire range of things where there's a distinction currently between boys and girls. Quite apart from just athletics. Is that correct?

Ms. Hartnett (01:15:51):

Your Honor, I do think that the question would… I think we're not trying to invent something here. I think we were trying to draw from what we understood to be precedent from the court and I would direct you to the Equal Protection Scholars brief. They have some scholars that have actually focused on this question of what does an as-applied challenge mean in the equal protection context. But I think taking a step back, the question always would be looking at what the state's asserted interest is here and here the state is not asserting an interest of having the boys teams be better and the girls teams be worse.

(01:16:17)
What they're trying to do is control for a sex-based biological advantage. And so I think a lot of the hypotheticals that you can maybe understandably think about what about the untalented cisgender boy? What about the transgender woman who didn't mitigate? What about this or that? That gets taken care of because the testosterone is the advantage on this record and almost all the people that might want to try to get an as-applied challenge under some other idiosyncratic framework would not be able to show that their exclusion actually [inaudible 01:16:47]

Speaker 11 (01:16:45):

And Ms. Hartnett.

Speaker 13 (01:16:47):

And this will be my last question.

Ms. Hartnett (01:16:48):

No, no please.

Speaker 13 (01:16:50):

My point was more that how we approach the situation of looking at it not as boys versus girls, but whether or not there should be an exception with respect to the definition of girls. If we adopted that, that would have to apply across the board and not simply to the area of athletics.

Ms. Hartnett (01:17:10):

I mean I think it's a general framework for equal protection challenge. And again, predated this case, this litigation, there have been boys that have tried these challenges in the past. They generally have failed because they actually don't lack the opportunity or actually they're not being treated differently than similarly situated individuals.

Speaker 11 (01:17:26):

You said, Ms. Hartnett, that you're not talking about individual by individual by individual, it has to be a defined group. So how big does the group have to be? How does it have to be defined and why are there those requirements? If what you're saying is right about equal protection law, why wouldn't it extend to individual by individual by individual?

Ms. Hartnett (01:17:47):

I don't think the court has foreclosed that other than this actual obvious conceptual question of when do we get towards strict scrutiny? I think what I could tell you is that in the way that the court looked at it from Caban to Lehr, to Nguyen, to Morales Santana and then also Trimble and Lalli for the case of non-marital children, the court seems to usually be trying to figure out not just is this individual somehow idiosyncratic, but are they part of a group that actually doesn't make sense to exclude?

(01:18:12)
And that makes sense because usually you're trying to figure out is the interest served by the exclusion? And there's usually some principle why a subgroup was not properly included.

Speaker 11 (01:18:22):

And what are the requirements of what does that group have to look like? Mr. Khan suggested that it has to be fairly sizable. It can't be 1% or less. Why not? Why? What are the other requirements? How do you go about defining which subclasses get to make this challenge and which subclasses don't?

Ms. Hartnett (01:18:44):

That's a good question, Your Honor. I think in Trimble, this is again the non-marital children case and cited in the BPJ brief. They said discrete categories that were unnecessarily excluded. That was the notion there. So I think that's where we were trying to make clear that we don't think it can just be, we have a person that is extraordinarily idiosyncratic and they should get their case. And I don't think anything in your cases rules that out. I guess that's not actually the case presented here. We think we have an easier case because we actually have identified discrete subgroup transgender women who do not have an athletic advantage.

Speaker 12 (01:19:14):

But I think you're answering Justice Kagan's question, which is fine if you buy into the, you have this subgroup as you've identified it. Mr. Mooppan says that subgroup has to be big enough. Do you agree? And if so, how do we evaluate that?

Ms. Hartnett (01:19:30):

I don't agree with that. I think in a way this is the Caban dissent coming back after many decades because there, Justice Stevens said in the dissent that the case in that case was assuming that the case extended only to himself and by implication to an unknown number of fathers and went on to say indeterminately small part. So I think there's never been a numerical requirement. It's more of a question of whether there's a principle, some sort of a principle that allows for the exception in light of the failure to align with the interest that the state is asserting. And here I think the record… Again, we're at a preliminary injunction stage, but the preliminary record was that the exclusion of our client actually was not going to advance the interest nor the exclusion of other transgender women who have taken efforts to mitigate their testosterone, which was on the record here again was the main driver of differential athletic performance.

Speaker 15 (01:20:19):

Counsel, one might wonder whether the efforts to refashion or equal protection jurisprudence here that we've been discussing at length on sex discrimination is really a fallback from what might be, one might wonder might've been your primary argument, which is that transgender status is itself discreet insular class. And I'm curious why you haven't brought that up and what thoughts you want to share with us. Your friend on the other side said, the laws you've pointed to in your brief don't address transgender persons as such, and that makes all the difference. Thoughts.

Ms. Hartnett (01:21:03):

Thank you for the opportunity to address that. I think we were trying to find the most straightforward way to help the court do an answer here. And I think we do think it's-

Speaker 15 (01:21:09):

Well, I've been wondering what's straightforward after all this discussion.

Ms. Hartnett (01:21:12):

No, I understand. I think these are older cases, but they are… It's very interesting to see the debate between the majority and Justice Stevens and O'Connor admitting that he was applying his dissent in Caban. So these are cases from the court we think they have some-

Speaker 15 (01:21:24):

Of course.

Ms. Hartnett (01:21:24):

But to the question you've asked, I do think it's important… I think to begin with, you heard my friend on the other side talk about cross-dressing or other laws. They didn't have any response to our point because there isn't one that transgender people were categorically excluded from immigration to this country under an overall umbrella of being a psychopath. That was the actual decision of this court. In the Boutilier case, it was interpreting language of Congress that determined that when Congress used the term psychopathic personality to exclude people, they meant to include homosexuals and other sex perverts.

Speaker 15 (01:21:57):

Perhaps not our finest hour.

Ms. Hartnett (01:21:58):

Well, it's not your fault, but I think that-

Speaker 15 (01:22:00):

Thank you for that.

Ms. Hartnett (01:22:04):

No, no, no. It was by reference to a congressional report. They were trying to figure out what did Congress mean and there actually was a public health service report. I would direct your attention to it because I think it really does go to the level… I was surprised when I read this document. It's 1952 USCAN 1653 at 1701, trying to explain why sex perverts would include homosexuals, transvestites, which was the name of the day for transgender people. The term transgender did not become more common until now. So I think reading Boutilier and reading the USCAN that's cited in Boutilier is instructive.

(01:22:37)
I also think that the laws on cross-dressing, I think that's an interesting point because what that actually means as a practical matter for the transgender person was that they weren't allowed to leave their home as themselves to enjoy all of their civil rights. And I don't think we don't want to exaggerate it, but we also don't want to understate it. There were major cities in the country, Chicago, others that actually barred you under subject to criminal penalty for leaving your house in clothes that weren't matching your gender. And people were actually prosecuted under those laws.

(01:23:04)
So again, I appreciate… And we're not saying you have to have the same history, we're certainly not equating the experience of the transgender community to that of Black Americans or women, but just as illegitimacy or non-marital children has been recognized as a class that gets a closer look. I think we respectfully submit here, it would make sense to do so. We appreciate though this is a question that the court hasn't recognized a suspect class for a long time. They also haven't shut the door to a suspect class since Cleburne. So I think we prefer to the extent the court was still finding another path forward. The reason why we tried to help you find a way to answer the question here based on sex discrimination.

Speaker 16 (01:23:40):

Well, to pick up on the issue of discrimination, on the basis of transgender status, let me go to some basics. Do you agree that a school may have separate teams for a category of students classified as boys and a category of students classified as girls?

Ms. Hartnett (01:24:02):

Yes, your honor.

Speaker 16 (01:24:03):

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?

Ms. Hartnett (01:24:18):

Yes, Your Honor.

Speaker 16 (01:24:19):

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?

Ms. Hartnett (01:24:27):

Sorry, I misunderstood your question. I think that the underlying enactment, whatever it was, the policy, the law, we'd have to have an understanding of how the state or the government was understanding that term to figure out whether or not someone was excluded. We do not have a definition for the court, and we don't take issue with the… We're not disputing the definition here. What we're saying is that the way it applies in practice is to exclude birth sex males categorically from women's teams and that there's a subset of those birth sex males where it doesn't make sense to do so according to the state's own interest.

Speaker 16 (01:24:57):

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

Ms. Hartnett (01:25:09):

I think here we just know, we basically know that, that they've identified pursuant to their own statute, Lindsay qualifies as a birth sex male and she's being excluded categorically from the women's teams as the statute. So we're taking the statute's definitions as we find them and we don't dispute them. We're just trying to figure out do they create an equal protection problem?

Speaker 16 (01:25:28):

All right. Suppose to this school that has a boy's, 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 affirming surgery says, "Nevertheless, I am a woman. That's who I am." Can the school say "No, you cannot participate on the girl's team"?

Ms. Hartnett (01:26:19):

Sorry. 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?

Speaker 16 (01:26:26):

Yes.

Ms. Hartnett (01:26:26):

Yes, they can.

Speaker 16 (01:26:29):

Is that person not a woman in your understanding? If the person says, "I sincerely believe I am a woman. I am in fact a woman." Is that person not a woman?

Ms. Hartnett (01:26:39):

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 for the regulation and so that's the way we'd be testing that hypothetical.

Speaker 16 (01:26:56):

The reason I'm asking has to do with discrimination on the basis of transgender status. So 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 team, from the girl's team, then that person is being subjected to differential treatment based on transgender status, right?

Ms. Hartnett (01:27:25):

Then the question would be whether the scrutiny would be satisfied. So from our perspective, that would be a transgender classification. It would get heightened scrutiny and it may be satisfied here because of the need to curtail unfair athletic advantage. That would be the analysis. We are not pressing in this case, the notion and the case does not require the court to decide whether transgender women who've gone through puberty and have not suppressed their testosterone would be able to play on a men's team. And the record here is a preliminary one where that doesn't present that question for the court.

Speaker 16 (01:27:55):

When this does present a particular factual situation and we have to decide that case. But looking to the broader issue that a lot of people are interested in, there are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them. What do you say about them? Are they bigots? Are they deluded in thinking that they're subjected to unfair competition?

Ms. Hartnett (01:28:30):

No, Your Honor. I would never call anyone that. And I think what we're saying here is that that's the reason why there is intermediate scrutiny or even in rational review, you don't legislate based on undifferentiated fears. You based on trying to make a rational response. What is a perceived issue? I think here, although I would take issue with the notion that there was no reference to transgender individuals in the creation of this law, I really would direct the court to JA… Again, this is not about animus, I'm just saying that if you look at JA… Pardon me, I need my… JA105 through 112. There are numerous references from the sponsor of the law saying, "The way we're going to try to protect women's sports is to not have transgender women play on the women's teams."

(01:29:12)
And that was the fear that they had at the time. Again, that is not an accusation of animus, it's just a question of what was the statute doing? And then we go to the point of does the statute survive heightened scrutiny? That would be the inquiry.

Speaker 16 (01:29:23):

Do you think that the success of trans athletes in women's sports is proportional to the percentage of trans athletes who participate in women's sports?

Ms. Hartnett (01:29:38):

I would direct your attention to… There's a… I want to make sure I have the right amicus. There's an amicus brief that talks about the… Actually some of the… There are examples obviously of some transgender people that have participated in and excelled. They actually are few and far between. We have our client here who tried to make the NCAA team because of the injunction. She was too slow. She played club soccer, club running. She was even an officer in one of those clubs just doing what you would hope a college student would do. You'll hear from my colleague about the other case. And there is a brief in the amicus briefs that will share the examples of showing that's a bit overstated.

Justice Kavanaugh (01:30:14):

The analysis be different if they were more successful?

Ms. Hartnett (01:30:19):

I mean we've already covered that transgender people are a meaningful slice of the population, but a small slice. I think the state, if there actually were a concern of women's sports being fully overrun by an outbreak of a huge new number of transgender people, that might be a different factual situation. In the end of the day, we understand that there were legislators who were concerned about that. The legislative history makes that clear here. But that wasn't the factual basis before the court. If there were actually a threat to women's participation in women's sports, that could be a different analysis because obviously the goal of sex equality in sports is a very important goal. We don't take issue with that. We just would say that I think this is an important moment to just take a step back and say, "Is this law actually responding to a problem in a rational manner or is it actually overreacting on the presumption that transgender women are categorically going to be strong athletes when that's not the case?"

Justice Kavanaugh (01:31:10):

Well, just to put the big picture and you know this on the table and let you respond to it, but obviously one of the great successes in America over the last 50 years has been the growth of women in girls sports, and it's inspiring. There's some states in the federal government and the NCAA and the Olympic Committee, so these are a variety of groups who study this issue, think that allowing transgender women and girls to participate will undermine or reverse that amazing success and will create unfairness.

(01:31:56)
Because you said if large numbers… Well, for the individual girl who does not make the team or doesn't get on the stand for the medal or doesn't make all league, there's a harm there. And I think we can't sweep that aside. And I think that's what's undergirding some of the concerns, big picture, and their harms on both sides. So I completely understand that, but I just want to let you respond to that because that is the NCAA, the Olympic Committee, a lot of states, federal government, that's a lot of people who are concerned about women's sports and think this raises a big problem. And I just want to make sure you can explain that.

Ms. Hartnett (01:32:39):

Thank you, Your Honor. And just to be clear, Title IX is a huge triumph and I'm a veteran of women's sports myself. I'm glad it exists. It's made a huge difference in our society. That's not what we're talking about here. But I do think to the point of… for the podium question, I think the question is, is there an unfair biological advantage? That would be the question. So I understand the point. If there is somebody who's

Ms. Hartnett (01:33:00):

… coming in with an unfair biological advantage that would undermine the entire point of separate sports in the first place, which was to allow women to have a place to thrive, to be strong, to win, not to just be the B team. The question in this case is, if the person had actually mitigated their sex-based advantage, which maybe interestingly, maybe counterintuitively actually is more about circulating testosterone after puberty than a lot of the other things we might think are sex-related than that girl that's come in second to a transgender person that's mitigated actually may just have come in second because the transgender person was similarly situated but was stronger in that one competition. That's why we are here not proposing a rule of absolute inclusion, but saying that in the case of people like our client who have mitigated, their exclusion doesn't match the statutory interest.

Justice Barrett (01:33:44):

Counsel, can I ask you a question about analytically and the discrimination on the basis of transgender status? Since trans boys can play on boys teams, how would we say this discriminates on the basis of transgender status when its effect really only runs towards trans girls and not trans boys?

Ms. Hartnett (01:34:04):

We understand the point, and I think that might be relevant to a, for example, animist point, right? There were not a complete exclusion of transgender people. There was an exclusion of transgender women, but I think on that piece, this court has never required the whole class to actually be excluded to look at the cases to whether the exclusion of a subclass was pro-

Justice Barrett (01:34:21):

I'm talking about for triggering intermediate scrutiny if transgender status is a suspect class.

Ms. Hartnett (01:34:26):

Right. So like Craig v. Boren example, that's the one about the men that couldn't-

Justice Barrett (01:34:30):

Alcohol year, yeah.

Ms. Hartnett (01:34:30):

… get the 18 to 20-year-olds, right? That wasn't all men. It was a subset of men and yet the court still viewed that as a sex classification subject to heightened scrutiny. And likewise here, even though it's just transgender women in our view that are being barred and not transgender men, that that also would trigger heightened scrutiny and I think there's the Rice v. Cayetano case from 2000. There's other examples of the court making clear that just because a subset of the protected class is being excluded, you still would apply heightened scrutiny.

Justice Barrett (01:34:55):

Another question about the science, so you were talking about circulating testosterone being kind of the marker. Idaho is saying, well that's not the only indication. When I asked the question about six-year-old teams before that, that there are other just kind of genetic hardwired differences maybe in size, et cetera, that don't have to do with circulating testosterone. Is it your understanding that testosterone is it?

Ms. Hartnett (01:35:18):

And my colleague who will present the argument in the next case that the record there was more about pre-pubertal and puberty? I think that the 5% even is not clear whether that's just environmental or biological, actually.

Justice Barrett (01:35:28):

Right.

Ms. Hartnett (01:35:29):

But I do think… So there are other things that I think height, bone size, there have been some other discussions of this. This is an underdeveloped record, by the way. This seems to go back and have a full trial except that it's moot. But I think the point there is that… No, I'm not trying to make a point.

Justice Barrett (01:35:44):

Yeah. No, no, no. I know.

Ms. Hartnett (01:35:44):

I'm not trying to pretend that I'm going to have a trial when we're not.

Justice Barrett (01:35:47):

I take the point, yeah.

Ms. Hartnett (01:35:47):

But I think the point is that sometimes counterintuitively, it's like having a larger frame but not having the muscle and the testosterone to drive it could actually put the person in a worse position. And that's a study that was commissioned by the Olympic committee. It's footnote six of our brief indicates that actually it could be actually put the transgender woman at a disadvantage if they happen to have larger bones and less testosterone or muscle to drive those bones.

Justice Barrett (01:36:09):

Last question, so below, as I understand it, your client challenged the verification procedures?

Ms. Hartnett (01:36:16):

Yes.

Justice Barrett (01:36:17):

Except when we were talking about how this might be administered, I understood you to say that it would be by checking testosterone levels because it would be okay to say to Justice Alito's hypothetical about the cisgender male who has taken no steps and who is now trans to exclude that person. But would that be an invasion? Would that be a violation itself or too invasive to require someone to, and maybe not just once, but maybe to periodic testing to make sure that the circulating testosterone was low enough. Why wouldn't that be invasive?

Ms. Hartnett (01:36:51):

So that's an ordinary blood work that a transgender person would get and that's why I think it's of the nature of the minimal burdens like in Nguyen and the other cases where the court has said intermediate scrutiny applies and you actually can, if there is minimal things you have to do to make yourself fall in the category that we want to keep protected, we can require that of you.

Justice Barrett (01:37:10):

Didn't you challenge it?

Ms. Hartnett (01:37:11):

Well, that was different actually because the three things that you'd have to prove under the state's novel verification thing would have to be your genetic, your reproductive anatomy, which would require actually a pelvic examination or examination of someone's nude area. It would be chromosomes which would require chromosomal testing. That's not what we're talking about. Or it would be endogenous testosterone. And the reason why that wasn't a problem is not because of a blood test, it's not invasive. It's because it would've required the transgender person to stop their hormone treatment to get back to an endogenous level to be able to show their endogenous.

Justice Barrett (01:37:41):

Okay, so the distinction between circulating and endo-

Ms. Hartnett (01:37:43):

Right. The point was that was actually in a way, and I'm not trying to cast aspersions, but it kind of a false requirement for transgender people because they aren't on their endogenous testosterone when they're on hormone therapy. They're on a non-endogenous medical treatment.

Speaker 17 (01:37:57):

Thank you, counsel. Justice Thomas? Justice Alito? Sotomayor?

Sotomayor (01:38:02):

I'd like you to address mootness because you raised it with Justice Barrett. Is this case moot? Could you respond to the other side's positions or arguments as to why it wasn't and how do you respond to that? Secondly, Justice Barrett did raise earlier, this law applies even to primary schools, correct?

Ms. Hartnett (01:38:28):

Taking your second question first, yes, I don't think it's in the record whether or not there are any primary schools, whether they sex separate or not, but that is the law.

Sotomayor (01:38:35):

And so at least as to that subgroup, no one could doubt that primary school children might have the strongest argument that there's no difference in their physical makeup that would cause harm or otherwise create an advantage, correct?

Ms. Hartnett (01:38:55):

That would be our position, Your Honor. In this case, we had both our client who was at college at the time and then we had a high school intervener who was worried about being subject to the sex verification. So we didn't really get into the building a record on the [inaudible 01:39:06].

Sotomayor (01:39:05):

But the point is that the law might be over-broad in many ways.

Ms. Hartnett (01:39:09):

Oh, certainly. Yep.

Sotomayor (01:39:10):

And there's still, as you noted, this is a very… Idaho is the first or the second state to pass this law.

Ms. Hartnett (01:39:17):

It was the first, I mean these cases come to you because-

Sotomayor (01:39:19):

The first.

Ms. Hartnett (01:39:20):

… they're early ones.

Sotomayor (01:39:20):

And the record here was the most underdeveloped, correct?

Ms. Hartnett (01:39:24):

Including because it was a preliminary injunction. There was a substantial amount of expert material in the record that allowed the district court to make appropriate findings, but it was not the level that you build up for a trial.

Sotomayor (01:39:34):

And both courts said that the record had to be looked at more carefully.

Ms. Hartnett (01:39:39):

Expressly, they did.

Sotomayor (01:39:40):

All right, so answer the mootness question.

Ms. Hartnett (01:39:42):

Your Honor, all I can say is that we've tried to provide the court with accurate information as soon as it came to pass in 2024 when we opposed certiorari, our client still was active in intending to play sports. The court granted the case. She was preparing for her what she hopes is her final year of college. She was concerned about the increasing hostility and the visibility. I mean, we're here now and that's okay. She understands she brought the case, but that was the basis for her trying to end her sports career. And it isn't contrary to what she said before, she did intend to play sports through college. Her college has taken a long time. She's now sworn she will never play sports that are covered again and she won't do that even if she happens to somehow win this case. So that is just the truth, but whether the court believes it's moot, we put the facts before you for you to decide.

Sotomayor (01:40:24):

How about her graduating this year? There was a suggestion she might not.

Ms. Hartnett (01:40:29):

As you can tell, college students have their… So she's trying her best to get through college. I think at this point, and I'm just basing on what I know of as to today. She's unlikely to graduate by May, as my friend said, but is hoping to make through summer credits could graduate in the fall.

Sotomayor (01:40:45):

Finally, in terms of the sports teams, the Olympic team, that all happened in 2025 after our president directed them to.

Ms. Hartnett (01:40:57):

We do think that's worth parsing out. Again, there's been a lot of contentions made on both sides that are extra record, but I do think a lot of those things flowed from the executive order. There were some other sports orgs that were doing different things, but I think we have to be careful not to broad brush that because some of it may have been political, some of it may have been scientific, and the record really isn't fully before the court.

Speaker 17 (01:41:15):

Justice Kagan?

Justice Kagan (01:41:16):

Ms. Hartnett, I just want to get your understanding of what constitutional review would look like in this context. So you said it's not individual, by individual, you have to come in and say there's a class that's not being treated appropriately. What is that class here?

Ms. Hartnett (01:41:32):

Thank you, Your Honor. And I would say I don't think the court has ruled out the individual case. I just think we weren't presenting it that way because we were trying to align ourselves with how the court had looked at it. I think we would say we represent the group of people that do not have an athletic advantage, that have mitigated their biological advantage of being born male.

Justice Kagan (01:41:50):

So who do not have an athletic advantage for reasons of taking certain medications or hormones or…

Ms. Hartnett (01:41:58):

No sex-based biological advantage. So it would encompass both people that had gone through the male puberty and had mitigated. It would also encompass others that have not yet gone through puberty or that staved off puberty with the puberty blockers.

Justice Kagan (01:42:12):

And as to those people, who has the burden of showing that the justification doesn't fit?

Ms. Hartnett (01:42:23):

I think once we've identified the subclass, under intermediate scrutiny, it is the state's burden to show a substantial relationship for that group and they fail to, and that's how those other cases proceed.

Justice Kagan (01:42:30):

You wouldn't think that because we are talking them about an as-applied challenge to a law that's facially, everybody can see it's legitimate, that the burden should shift to you?

Ms. Hartnett (01:42:44):

I don't think that's how the cases looked at it when they were assessing, they were kind of assessing whether the state had provided enough to allow the exclusion. For example, in Lair. The state had made an adequate showing to show why the parent in that case was properly excluded.

Justice Kagan (01:42:58):

And how do you think the question of scientific uncertainty should play out in an analysis like this?

Ms. Hartnett (01:43:05):

Thank you. That's a good question and I know this was something the court did address in Skrmetti a rational review case, but citing Carhart, which also talked about that. I think the one thing we definitely want to have is complete findings. So that's why we really were urging to have a full record developed before there were any final judgment of scientific uncertainty. I think the court has not fully grappled with what does scientific uncertainty mean and how does it come into conflict with heightened equal protection scrutiny. But I think we don't need to present that yet because on this record, there was not uncertainty. This person had mitigated testosterone was the determinant. Maybe on a later record that would come out differently, but I don't think that-

Justice Kagan (01:43:39):

Yeah, just play it out a little bit if there were scientific uncertainty.

Ms. Hartnett (01:43:42):

I mean, if it really were an equipoise, then I think that that is a situation where I think it's still heightened scrutiny. So under a heightened equal protection scrutiny, the burden is on the state to justify the law and if they haven't been able to justify that, that usually fails. If it's really a question of they're at 50- 50, do we allow the state some leeway? I don't think that's been answered in the court's cases. Normally, the heightened scrutiny controls and there's not a deference on top of that in the equal protection context.

Justice Kagan (01:44:11):

Thank you.

Speaker 17 (01:44:11):

Justice Gorsuch?

Justice Gorsuch (01:44:13):

Just to follow up on that, I wonder if that starts to sound like strict scrutiny because the point of intermediate scrutiny of course is some leeway for the state, not a perfect fit, at least in the facial area, but if there's scientific uncertainty about whether puberty blockers and testosterone suppressants, completely or mostly or some percentage of the time, eliminate all competitive advantage, some competitive advantage. I mean, you've been very careful, I think, and rightly so to talk about mitigating advantage, but I don't know, does the state have to show that it eliminates advantage and it doesn't eliminate some percentage of advantage remains in each individual case or for the group as a whole. I'm struggling to understand your response to Justice Kagan on that score. Maybe I'm inartfully posing the question, but I hope you understand.

Ms. Hartnett (01:45:16):

I do understand your question. I think the question is at some level, I mean I think the question is where you have science that's developing in real time at some level, what happens? How does that dovetail with trying a state that's trying to regulate and do that? I think what we can say on this record is the categorical exclusion is really not supported, I don't think, by any science. This again was from kindergarten through college, and so there'd be some subgroups at least, and I appreciate, I think there has to be an effort to try to tailor it. I think here the problem was there was a reaction of transgender women, a picture of what that would be kind of an undifferentiated fear, frankly, from the Cleveland case. And so I think-

Justice Gorsuch (01:45:48):

I appreciate all of that, but it seems to me from my glance at the record, and quite a record it is, that there is a healthy scientific dispute about the efficacy of some of these treatments and that's understandable. I'm just wondering how does that fit with, assume there is some dispute, and I understand the record remains to be developed further, but how does that fit with intermediate versus strict scrutiny?

Ms. Hartnett (01:46:21):

At the end of the day, it's the state's burden to show a substantial relationship. And I think in the case of something where they're doing their best and have the best evidence, some evidence to support what they're doing-

Justice Gorsuch (01:46:30):

Some evidence, the best evidence. Exactly. I mean that's-

Ms. Hartnett (01:46:33):

A level of evidence that wasn't met here. So the study and the findings, I mean the district court made a really good point. That study had actually been retracted and it didn't pertain to transgender athletes. So in a way, this is not the hardest case. I appreciate it as a hypothetical. I guess what I would just urge in this area that's sensitive obviously politically, but also as a matter of science, to at least let a record develop in one of these cases that lets you decide actually is this-

Justice Gorsuch (01:46:53):

No, I totally agree with that.

Ms. Hartnett (01:46:54):

… 50 50 versus 80 20, that's-

Justice Gorsuch (01:46:56):

All right, but 50 50, does the government win, does 70 20 the government win? That's what I'm getting at. I understand the complexity of the record and the difficulty of the science, but if we're going to have individual cases brought, that's the kind of question we're going to ultimately have to answer. Not the science question, but the percentage question, if you will.

Ms. Hartnett (01:47:17):

No, I understand that. I mean, VMI does provide some sort of a metric of what we would do there, which was we looked to see there were kind of evidentiary debates on both sides of that. But even if you could say that a lot of women may not have ever made the cut, the fact that there were some that did was enough to invalidate the entire policy. So I think there are ways for courts to make those judgments and I think the court has not yet, I think, encountered a case where heightened scrutiny puts a heavy burden on the state. It's not an insurmountable one like strict scrutiny normally is and then what happens if it ends up with the evidence being a tie or close to it when we go back to the trial court? I think that would be breaking some new ground because I don't think there's an equal protection case that decides that issue. Usually, the evidence is kind of clear on one side or the other about whether the restriction is justified.

Justice Gorsuch (01:47:58):

That remain for us to decide at a later point.

Ms. Hartnett (01:48:01):

I do think that's the most prudent, but definitely on a record that's more developed because I think in the end of the day, it might end up being a surprise to we don't know yet, but I think we have some good evidence that actually at the end of the day, being transgender woman, actually to the extent there are and you've repressed your testosterone, you're at somewhat of a disadvantage in many ways because you have again, this larger frame with weaker muscles and no testosterone.

Justice Gorsuch (01:48:23):

Thank you.

Speaker 17 (01:48:25):

Justice Kavanaugh?

Justice Kavanaugh (01:48:25):

Just to follow up on Justice Gorsuch's question, a broader frame about the role of this court when there's scientific uncertainty, there'll be different district courts who do different things, almost certainly in different cases and in an area of scientific uncertainty where there are strong assertions of equality interests on both sides. And so it's going to come to this court and we have to decide for the whole country constitutionalize this. And I guess given that half the states are allowing it, allowing transgender girls and women to participate, about half are not. Why would we, at this point, just the role of this court, jump in and try to constitutionalize a rule for the whole country while there's still, as you say, uncertainty and debate while there's still strong interest in the other side? And I think one of the themes of your argument's been the more people learn, the more they'll agree with you. At least, I've detected that theme in your argument. So why would we get involved, at this point, and constitutionalize it?

Ms. Hartnett (01:49:31):

I understand the question, Your Honor. I do think that the equal protection clause's demands have never been viewed as kind of a separate avenue from the legislative process. They can and do often coexist. And here I think the point is we have two as-applied challenges to early laws. They have their unique cases in their own right. I don't think this court needs to set rules forever on this area. I think the most important thing would be to allow a record to develop even in areas of controversy. And we look back what you cited to in Skrmetti you cited Carhart there. There were extensive findings. There also were findings in VMI. There were findings in Craig V. Boren.

(01:50:04)
I'm learning things by reading these cases over again. There were findings in those cases. And so I think that at least before the court decides to either step up fully or to embrace its role here of providing the scrutiny that should be attended to groups when there's a worry that the democratic process isn't actually going to fairly respond to their concerns, I think the point at least at a minimum would be get a full record, which we don't have here. That would be my request.

Justice Kavanaugh (01:50:27):

Thank you.

Speaker 17 (01:50:28):

Justice Barrett? Justice Jackson?

(01:50:31)
Thank you, counsel. Rebuttal?

General Alan Hurst (01:50:38):

Thank you, Mr. Chief Justice. A few points I heard just a moment ago that there is no real threat to women's sports. We strenuously disagree. We cite your honors to the UN Special Rapporteurs report that says 600 women have lost 890 medals in 29 different sports. That's what we're talking about. It is a real threat. Medical transition does not reliably suppress all male athletic advantages. Let's cite your honors to our record in which, our expert, Dr. Brown, shows the experience of one, CeCe Telfer, an elite track athlete who underwent a medical transition and whose track times did not change. That is the story in many situations. And unless we can reliably distinguish between those situations and the situations which testosterone suppression does eliminate the advantage. Then we can't do that. We need a broader classification and sex is the right one. And if it were merely politically motivated, I would add we wouldn't see this same rule being implemented by World Athletics, World Boxing, the NAIA, these different groups that were not influenced by recent politics but came to these decisions after studies, after lengthy examination and reached the same decision that Idaho has. Justice Gorsuch, in your colloquy with respondent's counsel, she agreed with this, that this is not the same as the discrimination that has been faced on the basis of race or on the basis of sex in this country. We agree it's not close to discrimination that people have faced on the basis of race or sex in this country. That said, the court does not need to reach that answer here because if there is no quasi, excuse me, if there is no transgender status classification in Skrmetti, there certainly cannot be one in this case.

(01:52:19)
In fact, as our briefs argue, the court can and should avoid all of these questions by applying rational basis review. Bottom line, sports are assigned by sex because sex is what matters in sports. It's the fairest and the safest and the most administrable way to assign sports teams. It's been widely accepted for many decades because it's necessary for fair competition, because where sports are concerned, men and women are obviously not the same. If Idaho can't enforce a sex-based line here in sports where nobody disputes that biological differences matter, then no line based on biological sex can survive constitutional scrutiny. The court should uphold the fairness in women's sports act and reverse.

Speaker 17 (01:53:05):

Thank you, counsel. The case is submitted.

Speaker 18 (01:53:06):

Ladies and gentlemen, you are connected to the second page. Please remain in your seat.

Speaker 17 (01:55:18):

Argument next in case 24-43 West Virginia versus B.P.J. Mr. Williams?

Mr. Williams (01:55:24):

Mr. Chief Justice, may it please the court. States have long assigned students to sports teams by sex. West Virginia is no different. Maintaining separate boys and girls sports teams ensures that girls can safely and fairly compete in school sports. The question today is whether this enduring structure can continue, it can. Title IX permits sex-separated teams. It does so because biological sex matters in athletics in ways both obvious and undeniable. The text, history, context, and structure of the statute alongside regulations expressly authorizing what West Virginia has done, confirm as much. Respondent says that West Virginia schools can no longer designate teams by looking to biological sex. Instead, schools must place students on sports teams based on their self-identified gender. But that idea turns Title IX, a law Congress passed to protect educational opportunities for girls, into a law that actually denies those opportunities for girls. The court should not embrace that backwards logic.

(01:56:33)
Aside from its problems with Title IX, the decision below constitutionalizes one side's view of a hotly-disputed issue, but West Virginia's law does not offend the equal protection clause either. The West Virginia legislature reasonably and rationally define sex based on biology and acknowledged the physical differences that biology creates. Given those differences, the law satisfies rational basis review and the state's law satisfies even intermediate scrutiny because it is substantially related to the important governmental interest in ensuring fairness and safety in girls' sports. Respondent attacks the law by searching for a transgender classification that simply isn't there. The law is indifferent to gender identity because sports are indifferent to gender identity. Ultimately, West Virginia's law, like the laws of at least 26 other states, simply preserves the enduring structure on which girls' sports depends. It should be upheld. I welcome the court's questions.

Speaker 20 (01:57:34):

What's your view of what Title IX? How it defined the separated sexes, male and female?

Mr. Williams (01:57:45):

So under Title IX, Your Honor, we would look to the ordinary understanding of sex at the time that Title IX was passed 1972 and I think also relevant would be 1974 when the Javits Amendment was passed. And at that time, the ordinary understanding of sex was biological sex consistent with the understanding of sex reflected in West Virginia's statute. I think that's also consistent frankly with this court's own understanding of sex and some of its own cases like Frontiera where it likewise focused on things like reproductive function.

Speaker 20 (01:58:14):

Well, with that definition, how would you square this challenge with the continued existence of Title IX?

Mr. Williams (01:58:24):

So I think this challenge fails under Title IX and in fact amounts to a backdoor attack on Title IX in the sense that Title IX itself contemplates sex distinctions and express regulations, specifically applying to the context of athletics expressly contemplate the distinctions between sex of male and female sports teams.

Speaker 20 (01:58:45):

In interpreting this definition, would it make a difference or does it make a difference that this is a spending clause statute?

Mr. Williams (01:58:53):

I think it absolutely does, Your Honor. Obviously, in the spending clause context, as this court has somewhat recently reminded lower courts, it's important for Congress to speak with an even clearer voice because of the contractual nature of the conditions that are imposed. States like West Virginia have to understand exactly the obligations that they're assuming in the context of a spending clause analysis. And so it amounts to effectively a canon of construction that requires that clearer statement in order for the condition to attach.

Justice Gorsuch (01:59:20):

I would've thought that's an interesting argument that this spending clause legislation in Title IX and Congress has to speak with a particularly clear voice and whatever it said here isn't clear enough. You didn't raise that argument and there's an argument from your friend on the other side that you waived the argument or forfeited, at least.

Mr. Williams (01:59:40):

Right.

Justice Gorsuch (01:59:41):

And it sure isn't the lead argument in your brief. Help me out. Why?

Mr. Williams (01:59:46):

So we of course start with the plain text of the statute, Your Honor, as this court has told us to do several times.

Justice Gorsuch (01:59:51):

Yeah, well I might start with the constitutional authority under which that statute was adopted, counsel.

Mr. Williams (01:59:59):

I think that's equally compelling authority for our understanding of the-

Justice Gorsuch (02:00:01):

Equally compelling a constitution-

Mr. Williams (02:00:03):

Perhaps greater compelling authority.

Justice Gorsuch (02:00:05):

I would've thought, yeah.

Mr. Williams (02:00:06):

West Virginia as you know, I think-

Justice Gorsuch (02:00:07):

Why isn't it in your brief?

Mr. Williams (02:00:09):

West Virginia is maybe uniquely a fan of clear statement rules as Your Honor might know from past cases. But in the spending clause context, I think it is in fact the case that your court has repeatedly stressed that Congress has to speak with that exception.

Justice Gorsuch (02:00:23):

I know what we've said. I'm wondering about what you didn't say.

Mr. Williams (02:00:26):

So I think if you're looking at the way that West Virginia has characterized it, certainly we have made that argument and presented that argument to this court. I'd refer you to the top side brief. It's clear and centered under a clear heading. As I think what their suggestion is from the other side is that we didn't clearly enough raise that argument below. We would take issue with that characterization. There was obviously binding contrary authority in the Fourth Circuit. And so I think strategically, we decided not to make that the front and center argument because we understood that was dead on arrival in that particular court. But that's not to say that we waived the issue by any means. It's a canon of construction that continues to assist this court in its application of the text of the statute.

Speaker 19 (02:01:02):

But counsel, can I just ask you about this, though? Have we ever applied the spending clauses notice requirement outside of the damages context? Because here we're not talking about a situation in which BPG is seeking damages, and I thought that was sort of a crux of the spending clause analysis.

Mr. Williams (02:01:21):

I will concede, Your Honor, that many of the cases that talk about this rise in the context of, or maybe even-

Speaker 19 (02:01:26):

All of them.

Mr. Williams (02:01:26):

… all of the cases-

Speaker 19 (02:01:26):

Yes, thank you.

Mr. Williams (02:01:28):

… rise in the context. I'll concede as much. Yes, Your Honor, but I don't think the court has ever suggested that specific request for damages is the reason for its analysis. And I think that actually would be inconsistent-

Speaker 19 (02:01:37):

But we would be having to address that, I guess, and extend it in this context if we were to take a spending clause tack.

Mr. Williams (02:01:45):

I would respectfully disagree, Your Honor. I would say that just because the court hasn't done so before doesn't mean it's an extension per se. I think that what the court has said is that you view the language of these statutes as effectively contractual agreements, and I think that that same sort of contractual logic applies whether you're asking the state to pay out damages or whether you're asking it to take specific action under compulsion of that.

Speaker 19 (02:02:05):

So who is the contract between here? And I thought the regulated party needs to know what it's agreeing to so it can consent, but here the regulated party is the schools and it's the state that's coming in. So I'm just trying to understand how the spending clause analysis works in this context.

Mr. Williams (02:02:25):

So I think the state is certainly one party that does receive federal educational funds, but it's also the many other petitioners that stand before you, including the county school board and the state school board are also petitioners in this case. I think there would certainly be, if anybody were clearly bound the conditions of Title IX, it would be both parties.

Speaker 19 (02:02:43):

So it would map on, I mean, I guess I'm worried that this might actually implicate the question that we didn't resolve in Moyle, and so we'd have to kind of figure that out because it seems like it's a different set of facts than the typical spending clause application.

Mr. Williams (02:02:57):

I think if anything, Your Honor, this is maybe easier than your typical spending clause analysis because you've got everybody from the state all the way down to the local county school board. Anybody and everybody who's involved in this case is a party to this action. In fact, you resolved a petition for CERT from the Athletics Commission saying we're not actually a state actor and the Fourth Circuit saw things quite differently. So I think there's really no concern in this case that you'd have an absent actor problem when it comes to the spending clause analysis. And ultimately, of course, if it's just a canon of construction, if you're looking for a clear statement, then I think it would apply regardless of the particular party who might be in front of you because the statute applies across the board, the regulated party is going to be affected regardless of whether they happen to be in front of you in the given case.

Justice Barrett (02:03:34):

Counsel, can I ask you a ques-

Sotomayor (02:03:36):

I'm sorry. I presume that if it's statutory construction, a canon of statutory construction, it's hard to say you can waive that.

Mr. Williams (02:03:44):

It's very hard to say. You can waive that, Your Honor. Yes.

Justice Barrett (02:03:47):

I just wanted to ask if on your understanding of Title IX, you could have separated by sex classrooms in biology or in math based on some evidence that you have that say men are better

Mr. Williams (02:03:59):

So I-

Speaker 21 (02:04:00):

… At math and science, what are the limits to your Title IX theory?

Mr. Williams (02:04:03):

So I think your instinct there in part arises from the fact that we're skeptical of any notion that there are inherent differences, so I want to acknowledge the real reality of this.

Speaker 21 (02:04:11):

Well, your whole position in this case depends on there being inherent differences, right?

Mr. Williams (02:04:15):

It does. And I think that that's exactly why discrimination in the Title IX context, where it acknowledges merely inherent biological differences, that's not discrimination. That's a distinction. And I think that's consistent with this court's longstanding understanding of what discrimination means. It looks to differential treatment of similarly-situated individuals. So even in a case like North Haven, you're talking about differential treatment of similarly-situated individuals, so if we're talking about in an athletic context or not addressing similarly-situated individuals. And I think, again, the Javits Amendment and the regulations that flowed from the Javits Amendment are a realistic reflection of those meaningful biological differences.

Speaker 21 (02:04:51):

The Javits Amendment gives you a reason in the sports context maybe to do it. I'm just wondering whether your friends on the other side have basically conceded that Title IX allows sex-separated sports teams, so I don't know that we need to really get into that. I'd be a little bit concerned about what the ramifications of that might be in the Javits Amendment in the context of sports makes a difference anyway. But more broadly, if a state produced some studies saying, "Listen, women's presence in calculus is holding men back because they're so much more capable and they can just move so much more quickly," seems to me like there'd be some risk on your understanding that that would be okay.

Mr. Williams (02:05:31):

I think, again, realistically, your Honor, that would almost certainly fail on the lack of-

Speaker 22 (02:05:35):

Of, how about chess club?

Mr. Williams (02:05:37):

A chess distinction I think, again, might fail because there's an actual lack of evidence of meaningful physiological differences that are reflected in the existence of the express regulations in the athletics context.

Speaker 22 (02:05:47):

I think a lot of people would say if you look at the ranks of chess grandmasters, there are not a whole lot of women there, and what does that mean? I think that there's an intuitive… I think there are a lot of chess grandmasters who would tell you that women, just for whatever reason, they're not as good as this.

Mr. Williams (02:06:11):

I think chess is an interestingly closer question. I've come to understand just recently in fact that there are sex distinctions in the elite-

Justice Gorsuch (02:06:17):

Well, you're fighting the hypothetical and I guess the question really is, okay, Title IX says you can't discriminate on the basis of sex?

Mr. Williams (02:06:23):

Yeah, sure.

Justice Gorsuch (02:06:24):

I understand what that means, I think I do, can't treat men and women differently. Okay, all right, fine. You're saying, "Ah, but it matters whether they're similarly situated," and your friends in the government like that line too. Well, I got a lot of evidence that girls perform a lot better in high school than boys. Okay. There's a lot of scientific… Or whatever, or they're just posit that, all right. Well, so I'm going to have a special remedial program for boys and the women can't come because they're not similarly situated. Why on earth would Title IX care about that? It says you can't discriminate on the basis of sex in a program or activity of your educational institution.

Mr. Williams (02:07:07):

So I think that-

Justice Gorsuch (02:07:08):

Why put that gloss on it?

Mr. Williams (02:07:10):

And your Honor, I want to be clear, I think the task for the court today is somewhat easier in part because of the express regulations that they have actually not challenged and that do expressly contemplate exactly what West Virginia has done. So I think your hypothetical, yes, of course is there, but I think the reality is that Congress and the agency have together addressed this specific question in a way that makes this court's task much easier. But I think the problem may be with your-

Justice Gorsuch (02:07:36):

Maybe another answer, we don't need to rely on this similarly situated argument. Is that what you're trying to tell me, counsel?

Mr. Williams (02:07:41):

I think you could also take that approach, yes, your Honor. And I think the reality is that that hypothetical addresses a situation that's much closer to the sort of exclusion and the specific context that gave rise to Title IX in the first place. And so I think that the court would be much more legitimately concerned that that would detect the very problem that Congress was trying to head off in passing Title IX in the first place. But I think that really puts the lie to the position that West Virginia is somehow discriminating because it's advancing the very same purpose that Congress itself was trying to advance in enacting Title IX in the first place. That's why West Virginia somewhat deliberately made its law mirror the exact same language from the express regulations themselves.

Justice Gorsuch (02:08:27):

I'm afraid I've got one more question. Oh, I'm sorry. Please go ahead.

Mr. Williams (02:08:28):

I can do both.

Justice Gorsuch (02:08:34):

No, you can't do both. That's not fair. That's not fair even by our standards. You make the argument that on the basis of means solely because of, solely, we have long said that because of means but for, not solely because of. The Rehab Act speaks of solely because of, it seems to me an awful big stretch, counsel, to say that on the basis of imports anything other than but for causation, and Comcast is against you there. And I just wonder why you put your eggs in that basket?

Mr. Williams (02:09:15):

Three answers, your Honor.

Justice Gorsuch (02:09:16):

And by the way, isn't the distinction here solely because of sex anyway?

Mr. Williams (02:09:23):

Well, let me take each of those in turn, or I'll try. I don't think that the case turns on the court accepting the idea that it's solely on the basis of sex. So I think you could stop-

Justice Gorsuch (02:09:33):

That's a sufficient answer right there. Fair enough.

Mr. Williams (02:09:35):

Thank you.

Justice Gorsuch (02:09:35):

Your turn.

Mr. Williams (02:09:35):

Thank you.

Justice Kavanaugh (02:09:37):

Can you explain the relevance and significance of the Javits Amendment of distinguishing sports from all these other hypotheticals?

Mr. Williams (02:09:44):

So I think the relevance and significance is your Honors are faced with a unique set of regulations in that Congress was directly intimately involved in both the instigation of the regulation in 1974, and then-

Justice Kavanaugh (02:09:56):

And in that law referred to the nature of particular sports, right?

Mr. Williams (02:10:00):

It did. So what they said was, "We want you, the agency, you, to go ahead and implement Title IX writ large," and call that one specific problem that I think arose on the floor about whether Title IX applies to, in particular, intercollegiate athletics. And I would say-

Justice Kavanaugh (02:10:16):

And that's been extended to high school by the regulations.

Mr. Williams (02:10:20):

Exactly.

Justice Kavanaugh (02:10:20):

But ruling for you on sports does not open the door, in my view, given the Javits amendment, to the chess club necessarily. That could be separately analyzed, but it doesn't follow from a law that says sports.

Mr. Williams (02:10:34):

That's exactly right. And that's exactly why we were trying to make your job easier in the sense that we took the language expressly from the regulations and mapped it over under our own statute. So there's really no debate if it's outside the context of Title IX, it's outside the context of our statute. So at that point, the court's analysis is done. But I think when you have a regulatory scheme where Congress was specifically involved, in fact undertook a review, then that's exactly the sort of regulation that even in a post-Loper Bright world continues to have importance because it's long-standing, continuous contemporaneously issued, all those sorts of check boxes that this court under a Skidmore framework continues to place substantial weight on. So I think that makes the court's task relatively straightforward.

Justice Kavanaugh (02:11:14):

And what about Bostock, you want to deal with Bostock?

Mr. Williams (02:11:23):

I guess it depends on the way in which you mean does it deal in Bostock, I think-

Justice Kavanaugh (02:11:26):

Well, if an employer said, "We're going to fire all the transgender women," that'd be a violation. If a school says, "We're not going to allow the transgender women to play sports," you say that's not a violation. Both statutes use the term sex. Can you explain?

Mr. Williams (02:11:42):

I think the reason why is… Well, to be clear, our statute is very different from a specific choice to say a transgender person shall not participate because of their transgender status. And I think that really is what makes the difference between this case and Bostock is Bostock is attacking status-based discrimination, and West Virginia would I think be in a much different position if we had just said, "Transgender persons shall not compete," but that's not what West-

Justice Kavanaugh (02:12:05):

What if it said transgender women and girls shall not compete in women's and girls sports?

Mr. Williams (02:12:10):

I think, again, that's a much closer question. I think if we're talking about engaging with the actual status of-

Justice Kavanaugh (02:12:16):

Do you think you could lose under Title IX with a statute that said that?

Mr. Williams (02:12:21):

Bostock, I think is… Now I understand your Honor's question. I think Bostock raises an interesting question as to whether that reference to transgender status would in turn implicate the sex status that Title IX is meant to address, but ultimately I think the court doesn't need to address that because you can stop at the first step. You don't have an actual transgender exclusion that would give rise to that kind of linkage of analysis.

Speaker 24 (02:12:41):

Thank you, counsel. In terms of Bostock, I understand that to say that discrimination on the basis of transgender status is discrimination on the basis of sex, but the question is whether or not a sex-based classification is necessarily a transgender classification. And I wonder if that is consistent with your understanding.

Mr. Williams (02:13:10):

It's entirely consistent. I would say on the equal protection side in particular and also in the Title IX context, I think for some of the reasons I just discussed with Justice Kavanaugh, I think the court can stop and say that a sex definition and a reference to biological sex is not the same as a transgender classification. And I think even if we engage in the for causation analysis, I think it's as simple as saying, "Does the result change if you change the gender identity of the individual involved?" And the reality is if you apply the West Virginia statute to a biological boy identifying as a boy applies in the very same way as a biological boy identifying as a girl.

Speaker 24 (02:13:49):

Justice Thomas. Justice Alito. Justice Sotomayor.

Speaker 23 (02:13:54):

I find it strange that the District court and the court below did find a Title IX violation, but not an equal protection violation and remanded for the equal protection violation, I'm not sure how it could do that, because it would seem to me that if the protection violation, it's not sufficient to find a Title IX violation. Is that correct? At least on the record as it exists now.

Mr. Williams (02:14:23):

Right. And so to be clear, the district court actually ruled for West Virginia on both Title IX, and so the Fourth Circuit said you lose on Title IX and we're not sure about equal protection.

Speaker 23 (02:14:31):

But assume the Fourth Circuit is right.

Mr. Williams (02:14:33):

Right. Well, in answering your question, I think that doesn't make sense. And I think the reason why it doesn't make sense is because the Fourth Circuit effectively stripped out… What they said is Title IX doesn't leave room for any kind of justification or any kind of analysis of what the reasons might've been for the state's action. And I think respectfully, particularly when you look at, again, the regulations themselves, that actually does contemplate exactly that sort of analysis.

Speaker 23 (02:14:59):

I agree with you on the regulations, and so could you not have a Title IX violation but still have? Let's assume. And I know you're going to fight the factual premise.

Mr. Williams (02:15:13):

I'll try to embrace it, your Honor.

Speaker 23 (02:15:13):

All right. Embrace it. All the scientific evidence showed that there's no difference between cisgender girls and trans girls. I know there's a fight about it.

Mr. Williams (02:15:27):

It hurts.

Speaker 23 (02:15:30):

I know it hurts, but assume it, could you not still have violated, could we hold that as the regulation stands, the regulation would permit you to discriminate, but the equal protection clause would not?

Mr. Williams (02:15:51):

Let me try to get head in the framework of assuming.

Speaker 23 (02:15:54):

Assume.

Mr. Williams (02:15:54):

I think the regulation would still allow us under its express-

Speaker 23 (02:15:59):

I'm assuming, yes.

Mr. Williams (02:16:00):

Right. And so you're asking, even assuming our compliance with the regulation, could we still have a potential equal protection problem?

Speaker 23 (02:16:06):

Yes.

Mr. Williams (02:16:07):

In that world I think we would still be fine under the equal protection analysis, frankly, for some of the reasons that you heard from the solicitor earlier today where it's because even if you assume the heightened level of scrutiny, let's assume that we're in intermediate scrutiny world, it's still a reasonable fit, it's not a perfect fit.

Speaker 23 (02:16:25):

Then we're back to that-

Mr. Williams (02:16:27):

Exactly. And I know we've had a long colloquy about that today, but ultimately, I think that's what I-

Speaker 23 (02:16:31):

I just destroyed that by saying that the science has said there's no difference, and we know that's not true. Assuming the science said there was no difference, how could you ever say it's reasonable?

Mr. Williams (02:16:44):

I'm assuming a world in which there's no difference between… So you're saying testosterone-suppressed individuals, is that-

Speaker 23 (02:16:51):

No, I'm-

Mr. Williams (02:16:52):

Or you're saying all men and women full stop?

Speaker 23 (02:16:54):

Right.

Mr. Williams (02:16:55):

Oh, okay. I apologize for misunderstanding the hypo. If we're assuming a world in which there's really no biological difference, full stop, as to men and women, full stop, then I think, right, the legitimate governmental interest falls away. I agree with you.

Justice Kavanaugh (02:17:08):

There are, as we discussed, a bunch of states that allow biological males who identify as female transgender women and girls to play women and girls sports. We were talking about that with the Solicitor General earlier. On your theory of Title IX, are those states violating Title IX rights of the biological females?

Mr. Williams (02:17:35):

I think it's a much closer question under Title IX than it is under equal protection. And I think the reason being is that the regulations specifically say there's the-

Justice Kavanaugh (02:17:45):

Well, what do you think the answer is under equal protection? I might as well ask that.

Mr. Williams (02:17:47):

So under equal protection, I think we agree with our friends in Idaho that there's enough room for California to make a different determination. I think under Title IX, the reason why it's a closer question is because of the existence of the regs. And the regs start by saying you start with co-ed teams and then you can move down to sex-separated teams in the context of contact and competitive skill. And it really contemplates a real genuine sex distinction in that move down B provision. And then of course it also has the catch-all where it says, "But actually in the context sports, you can't move back into the co-ed world." So I think if a state is moving away from a genuine sex distinction as the regulator contemplated, and as Congress ultimately contemplated, then maybe they're… If you think of B as a safe harbor, in a sense, they're outside the scope of that safe harbor and now they're running into the problem in A. So I don't think the court needs to get into any of that.

Justice Kavanaugh (02:18:42):

Right. I agree. I'm just trying to know what's coming.

Mr. Williams (02:18:43):

But I think that it's a closer question at least than the-

Justice Kavanaugh (02:18:46):

Because your theory is that sex is biological sex in Title IX or is that not your theory?

Mr. Williams (02:18:53):

No, that is. And it's not our theory, your Honor. It's the ordinary understanding of what sex meant both in '72 and '74 when the regulations were themselves implemented. We're just trying to be consistent with that.

Justice Kavanaugh (02:19:04):

Thank you.

Mr. Williams (02:19:04):

Thank you.

Speaker 24 (02:19:05):

Justice Jackson.

Justice Jackson (02:19:07):

So I guess I'm trying to puzzle through whether or not there is some independent form of discrimination against transgender women that is distinct from the sex separation that Title IX allows. So I appreciate that your argument is that because the regulations permit sex separation and that hasn't been challenged, that that should be the end of this inquiry basically. And I think you get there because you say you're picking up on this idea that maybe this is just about a definition of who is a male or a woman. Is that right?

Mr. Williams (02:19:50):

I think to some degree, but it's also, your Honor-

Justice Jackson (02:19:51):

To some degree.

Mr. Williams (02:19:53):

It's just because we are indifferent to a person's gender identity and applying the law. I think that's-

Justice Jackson (02:19:58):

But the law actually operates differently, I think, for cisgender women and transgender women that is with respect to their desire to play on a team that matches their gender identity, cisgender women can do it, transgender women cannot. And so we do appreciate a distinction, I think that is being drawn on the basis of your gender identity status, trans or cis. Right?

Mr. Williams (02:20:32):

And I want to make sure I understand, if we're operating in Title IX world or equal protection world? Because I think it might make a difference to the answer, but

Justice Jackson (02:20:37):

Okay. Let's start with Title IX world.

Mr. Williams (02:20:41):

Title IX, I think the question of I look at the statute and see a distinction between boy and girl indifferent to gender identity, and I think that-

Justice Jackson (02:20:52):

Right, but I'm testing that proposition. You see that distinction and I see it too on the separation of teams level at the beginning.

Mr. Williams (02:20:59):

Right. And I think what I'm hearing is that that distinction arises from a difference in effect, and I don't see a disparate impact analysis that's hidden away in Title IX.

Justice Jackson (02:21:09):

But why is that a difference in effect? So it's like a second order discrimination. The first order is separating male from female. The second order is separating transgender women from cisgender women. Right?

Mr. Williams (02:21:26):

Respectfully, I would disagree, your Honor.

Justice Jackson (02:21:28):

No.

Mr. Williams (02:21:28):

The reason why is just because I think anytime you have a classification, you could divide it into sub-classifications, and I don't think that then becomes… The law in the same way applies to brown-haired biological girls and blonde-haired biological-

Justice Jackson (02:21:40):

I understand, but I don't think you can get… I'm not sure… And maybe this is switching to the equal protection, I don't think you can get out of the implications of making a classification by setting it up as a definition, as a subclass, and so we've already okayed the classification, because it's really all about classification. You can't distinguish in that way, right?

Mr. Williams (02:22:03):

Well, I think what the court said on the legal protection side is you look at the facial classification and I think here it's effectively unconceded that the facial classification is between boy and girl. And I think at that point maybe you have a situation where you think that the classification is somehow a proxy for some sort of secret secondary classification, but I don't hear-

Justice Jackson (02:22:20):

No, but the definition implicates another division. Here's an example. So suppose that we have Title IX exempting, and I think it does this, certain religious institutions from its requirements, and let's say Title IX then went on to define, this is in my hypothetical, religious institutions to include only those institutions that proselytize, is that a classification problem or a definition problem? I would say it would be a classification problem and you'd still have to apply all of the heightened scrutiny just because they're defining religious institutions in a certain way. Similarly, here you have the overarching classification, everybody has to play on the team that is the same as their sex at birth, but then you have a gender identity definition that is operating within that, meaning a distinction, meaning that for cisgender girls, they can play consistent with their gender identity, for transgender girls, they can't.

Mr. Williams (02:23:33):

As to the part about your ability to pass over from boy to girl, you can go from one way but not the other, I want to be clear that BPJ is not challenging that specific classification. I think that's important to start with. But I think if anything, that's useful evidence as to the lack of a transgender-based discrimination. Because if the legislature were just unsettled by the notion of transgender athletes, I think the answer would've been to then bar them from passing over [inaudible 02:24:00]

Justice Jackson (02:23:59):

I appreciate that. I guess I was getting at what I understood the chief justice to be trying to discuss, which was this notion that this is really just about the definition of we accept that you can separate boys and girls and we are now looking at the definition of a girl and we're saying only people who were girl-assigned-at-birth qualify.

Mr. Williams (02:24:25):

And there is authority cited under our brief, this court I don't think has ever phrased it quite as in the way of this definitional framing that we're talking about right now, but certainly cases like Jana-Rock in the Second Circuit do approach it from this definitional framing, and they say that if you effectively concede that there's an initial ability to draw a classification, then that suffices to satisfy the intermediate scrutiny question. But then past that, the definitional question is evaluated through rational basis review. And that's Jana-Rock. I recognize this court has never gone as far as that, but I don't think the court needs to go as far as that, because, again, I think the way that you would do the analysis is to start by looking to the face of the statute. And if the face of the statute is engaged in a conceited boy-girl sex classification, is conceited to be legitimate, then at that point you know which world you're operating in.

Justice Jackson (02:25:17):

Thank you.

Mr. Williams (02:25:17):

Thank you.

Speaker 24 (02:25:18):

Thank you, counsel.

Justice Gorsuch (02:25:25):

Mr. Mufan.

Mr. Mufan (02:25:26):

Mr. Chief Justice, may I please the court? So there have been a lot of different arguments made this morning, and so I think it might be helpful to just focus on what I think are the easiest way to resolve both of the claims in this case. On the equal protection claim, it's the arguments we discussed this morning about intermediate scrutiny doesn't work on this as applied basis. So let me focus for the Title IX claim. I think the simplest way to resolve the Title IX claim in this case is as follows, the regs expressly authorize sex-separated teams, the other side isn't challenging those regs. When those regs use the word sex, they obviously use the word sex to mean biological sex in the reproductive biology sense, that's the ordinary meaning of the term in 1972 and 1974.

(02:26:07)
As a result, whether or not they are right that taking testosterone suppression eliminates any physical advantage, doesn't matter, because the regs define separation based on sex, based on biology, not based on circulating testosterone levels. So their claim that they've eliminated the difference just doesn't matter under the language of the regs, and that's enough to resolve the case.

Speaker 25 (02:26:33):

Your argument as I understand it is that they're not similarly situated?

Mr. Mufan (02:26:36):

So that's an additional argument you could make is to say that even if you just focus on the language of the statute, the statute says discriminate on the basis of sex. Discrimination, as this court has repeatedly recognized, including in Bostock, means treating one person worse than someone who is similarly situated. And yes, we don't think a man taking performance altering drugs is similarly situated to a woman, but you don't even have to reach that question, because under the regs, the question is the regs say you could separate based on sex, everyone agrees that sex in those regs means the biological sex, therefore the circulating testosterone levels are just legally irrelevant under the regs.

Speaker 23 (02:27:16):

You say you can separate the sexes, why are you now taking the position in other cases that if states choose not to separate the sexes in the way you want, that they're violating Title IX?

Mr. Mufan (02:27:33):

Again, we think that's a separate question and you should leave it separate, but the argument we're making in those cases is the statute and the regs allow separation based on sex because of the biological differences between men and women. If you purport to separate based on biological sex, but then you allow some biological males to play on the female team, you've undermined the justification for separating in the first place, because normally you can't separate. If you take, for example, world history class, you can't have world history class for men and women, that's generally prohibited by the statute. The reason you could separate for sex for sports is the biological difference. And if you then undermine that, you've undermined the justification for-

Speaker 23 (02:28:15):

So we're now back always to the science, is there really a difference and a difference for this kind of person? If it's not clear the way you want it to be in terms of separating the sexes, I'm wondering why it's clear for your attempt to force those states who are choosing not to do this, you're now saying you must?

Mr. Mufan (02:28:38):

Again, that question is not presented in this case, and for this case the factual dispute is irrelevant.

Justice Gorsuch (02:28:44):

Mr. Mufan, do you think that the spending clause should inform our analysis here?

Mr. Mufan (02:28:50):

I don't think the court should invoke the spending clause in this case.

Justice Gorsuch (02:28:53):

Why not?

Mr. Mufan (02:28:54):

For two reasons. One, we think that the statute and the regs clearly do not permit the claim.

Justice Gorsuch (02:29:00):

I understand that.

Mr. Mufan (02:29:01):

And then the second is how the spending clause applies in the context of Title IX is I think a little more complicated than my friend suggested. It's not a clear statement requirement. I think if you look at some of these clear notice cases, cases like Jackson and Geyser, I don't think you would say that those statutes had a clear statement.

Justice Gorsuch (02:29:17):

It's a clear notice requirement.

Mr. Mufan (02:29:19):

Right, but how that applies is a little tricky and I think in the case-

Justice Gorsuch (02:29:23):

Why? Your argument is that in 1974 and 1966 meant biology and there's not clear notice otherwise. Why isn't that the end of it?

Mr. Mufan (02:29:35):

I think the end of it is the statute clearly doesn't permit this claim. I'm just saying that I would be cautious about speaking about how the clear notice requirement applies because it is not a clear statement requirement.

Justice Gorsuch (02:29:45):

I understand that. You're not answering my question with the statute. If it's a clear notice requirement at minimum and a voluntary agreement, and sex at the time of the statute meant, as Bostock said because there's a good argument it's biology, why wouldn't West Virginia be within its rights to say we didn't have clear notice otherwise?

Mr. Mufan (02:30:09):

The scope of the clear notice requirement is a tricky question. If you look at this court's cases, I suspect, your Honor-

Justice Gorsuch (02:30:15):

What's tricky about that?

Mr. Mufan (02:30:16):

I suspect, your Honor, would think a lot of the cases where this court is found Title IX to apply, you would think there's not clear notice.

Justice Gorsuch (02:30:21):

All right.

Mr. Mufan (02:30:22):

And so I think it's a tricky issue and I think it's a case that should be briefed and I don't think it's an issue you need to solve in this case.

Justice Gorsuch (02:30:28):

And then on the statute itself, it speaks of discrimination in program or activity, and in Davis we explained that that requires a look at the whole of the institution because the definition of program activity is the whole institution. So that's less individual focused it seems to me. Thoughts?

Mr. Mufan (02:30:49):

Well, I think that's true for the funding, but I don't think that's true in terms of how the discrimination provision works. If you discriminate or exclude in one part of the school, I don't think you could justify that by saying, "Well, all the rest of the school, we treat everyone fairly." I think those cases you're talking about, as long as you're receiving funding somewhere, the whole school's activities are covered.

Justice Gorsuch (02:31:09):

Okay. And so it really boils down to the living accommodations provision, which Congress anticipated there would be sex-separated living accommodations being permissible, the Javits Amendment, and then the regulations that are long-standing and then therefore entitled to some serious consideration?

Mr. Mufan (02:31:29):

Well, no. Your Honor asked why we run the simile-situated argument. Take for example-

Justice Gorsuch (02:31:34):

Don't bring that back up.

Mr. Mufan (02:31:36):

Well, locker rooms and showers aren't covered by any of the things you just identified. Not the living facilities provision, not the Javits Amendment, none of those things covered locker rooms and showers. So unless you use a similarly-situated requirement, you would have to say that Title IX bans single-sex locker rooms and showers.

Justice Gorsuch (02:31:52):

Okay. All right. If that's your view, then let's talk about the similarly-situated, I guess I have to, what about the hypothetical I posed earlier that when it comes to high school performance, girls are sure a lot better than boys, and so we're only going to have remedial classes for boys, and girls aren't free to attend?

Mr. Mufan (02:32:12):

I don't think those differences are based on inherent biological differences.

Justice Gorsuch (02:32:15):

Well, let's say I've got really good science. It's all about the science, right? I got the science. You're fighting the hypothetical.

Mr. Mufan (02:32:22):

I'm not fighting the hypothetical, your Honor. I think what I would say, your Honor, is that this court has held, in cases like VMI, that in general classification based on sex is impermissible because, in general, men and women are similarly-situated. Where that's not true is for the sorts of real enduring obvious differences that this court talked about in cases like VMI, the differences in reproductive biology, I don't think the sort of pseudoscience you're suggesting has been baked-

Justice Gorsuch (02:32:47):

Well, it's not pseudo. It's good science.

Speaker 22 (02:32:51):

That's pseudoscience to say boys brain development happens at a different stage than girls does.

Mr. Mufan (02:32:56):

Well, with all respect, I don't think there's any science anywhere that has suggested that these sort of intellectual differences are traceable to biological differences, and I don't think the statute should be-

Justice Gorsuch (02:33:06):

With respect, I don't think you're a PhD in this stuff. And I know I'm not, but I'm asking to deal with a hypothetical.

Mr. Mufan (02:33:12):

And so I guess what I would say about that, your Honor, is-

Justice Gorsuch (02:33:15):

I mean the statute says no discrimination on the basis of sex, and you're saying, "Eh, it's okay when they're not similarly-situated." And you're worried about locker rooms, great, I appreciate that, but I'm worried about that math remedial class or the chess club or whatever.

Mr. Mufan (02:33:32):

And so, look, let me put it this way. The general rule is you have to treat men and women the same.

Justice Gorsuch (02:33:37):

I would've thought, that's what the statute says.

Mr. Mufan (02:33:40):

And I think you have to be very about recognizing an exception. And so when you recognize an exception for what's similarly-situated, I think you should tether it to the sorts of long recognized differences that would've been recognized at the time the statute was enacted. At the time the statute was enacted, no one would've doubted that it said it didn't require-

Justice Gorsuch (02:33:59):

Oh, I think the time of statute was enacted, 1964, there are a lot of people who thought boys are better at certain things than girls at others not based that we don't believe anymore.

Mr. Mufan (02:34:09):

Not based on inherent biological difference.

Justice Gorsuch (02:34:11):

I think that may in 1964 they did.

Mr. Mufan (02:34:13):

And if they did, they didn't have any basis for it. Whereas, whereas for-

Justice Gorsuch (02:34:19):

And I'm giving you a hypothetical where I have the science to prove it, and you're saying it's still not good enough.

Mr. Mufan (02:34:24):

I guess if you're asking me a hypothetical where the science existed in 1972 and everyone agreed with it, then it might be a different inquiry. That really is a hypothetical because there wasn't…

Speaker 21 (02:34:34):

Mr. Mufan, I think these are very, very hard questions, I started with the math question before, but do we have to, because of the Javits Amendment, because the other side has conceded that Title IX permits sex-separated sports. Can we avoid your whole similarly-situated argument that you run? Because I don't really like it that much either.

Mr. Mufan (02:34:50):

Absolutely. That's why when I stood up here, the first thing I said was the easiest way out of this case on this claim is to say that the regs permit sex separation. They don't dispute that-

Speaker 21 (02:34:59):

Save locker rooms and all that for-

Mr. Mufan (02:34:59):

Right.

Justice Coney Barrett (02:35:00):

… [inaudible 02:35:00] and all that for [inaudible 02:35:01].

Mr. Mufan (02:35:00):

Right. The only reason I went into it is I was nervous that any sort of suggestion that there isn't a similarly situated requirement could lead to results that I don't think the court would actually stand up to, like locker rooms and showers. I have no problem if the court doesn't take a position on-

Justice Coney Barrett (02:35:18):

Okay. I'll say, I said, I don't like the argument. At first blush, I don't like it. I'm not trying to prejudice anyone making that argument later, but I think it opens a huge can of worms that maybe we don't need to get into here because the Javits Amendment and the concessions [inaudible 02:35:30].

Mr. Mufan (02:35:29):

That's right. As long as you don't cut it off the other way, I think that's perfectly fine.

Chief Justice Roberts (02:35:33):

Thank you, Counsel. Justice Thomas, anything further? Justice Alito? Justice Sotomayor? Justice Kagan?

Justice Kagan (02:35:40):

Mr. Mooppan, you talked about you are litigating this case the opposite way among states that do not prohibit trans women and girls from participating in sports teams. Is that correct?

Mr. Mufan (02:35:56):

Yes.

Justice Kagan (02:35:58):

And you said, and I appreciate this, that we should not address that question. Are there arguments that do suggest what the answer is on that question that we should be careful about-

Mr. Mufan (02:36:13):

I would-

Justice Kagan (02:36:13):

… or do you think that they're really self-contained boxes?

Mr. Mufan (02:36:16):

I think they're generally distinct. What I could confidently say is the argument that I identified at the outset and with Justice Barrett just now, if you just say that the regs mean sex, sex doesn't mean circulating testosterone, and therefore, you're not required to allow boys to play on girls' team regardless of the circulating testosterone level, that argument would not influence the outcome of those other cases one way or the other.

Justice Kagan (02:36:42):

Are there any arguments that would influence the outcome one way or the other?

Mr. Mufan (02:36:46):

I don't think so. Maybe if you engage in discussion about what the regs meant with respect to things like equal opportunity, that might be the sort of issue where it might have implications for the other case.

Justice Kagan (02:36:58):

Thank you.

Chief Justice Roberts (02:37:01):

Justice Gorsuch? Justice Kavanaugh?

Justice Kavanaugh (02:37:02):

I just want to be crystal clear about that. If we say sex in Title IX is biological sex and then we get to the next case, the California case or whatever it is, how would California still prevail if we've said that here?

Mr. Mufan (02:37:20):

I think the argument the other side would make would be that the regs don't prohibit them from accommodating transgender individuals. Even though the regs permit separation based on sex, they also don't forbid accommodation of transgender individuals is the argument they would make. They would say it doesn't matter that you're allowing some boys who have a biological advantage to play on the girls' team.

Justice Kavanaugh (02:37:42):

What's the argument you're currently making in opposition to that?

Mr. Mufan (02:37:45):

That the justification for separating on the basis of sex is the biological difference, and so you're undermining the justification for the separation.

Justice Kavanaugh (02:37:54):

Right. So we start with the separation. I think what you're saying is once you separate boys' and girls' teams, which everyone does, and it may be even required, in my view, to have equal girls' teams, then California really doesn't have an argument if we say that sex in Title IX means biological sex, which may be okay. I just want to make sure I know what we're doing.

Mr. Mufan (02:38:21):

Look, Your Honor, obviously, we don't think they can argue that, but I'm confident that California would stand up here and say that even if you rule the way I just urged, they should be able to argue the opposite by saying essentially that they're allowed to accommodate on the basis of gender identity, even though the regs mean sex and sex means biological sex. That's the argument they would make. Whether that argument's right or wrong is for another case, but I don't think if you adopt the argument I'm making here today, their hands are going to be tied.

Justice Kavanaugh (02:38:48):

Okay. Then on this premise that has been conceded, I just want to make sure I understand your view. My understanding is that it's sex-separated sports teams so long as they're equal opportunity for girls and boys are perfectly constitutionally permissible. Is that not your understanding?

Mr. Mufan (02:39:11):

Yes, yeah, yeah, yes, per the arguments in both cases.

Justice Kavanaugh (02:39:14):

It's conceded, but it's conceded because it's obvious.

Mr. Mufan (02:39:16):

Right, because there are obvious biological differences between men and women and that's why-

Justice Kavanaugh (02:39:20):

Well, the why people may debate, but it's obvious it's conceded. And so too Title IX because of the Javits Amendment, at least, even if not Title IX originally.

Mr. Mufan (02:39:30):

Well, I would say even without the Javits Amendment because importantly the Javits Amendment is only about intercollegiate so-

Justice Kavanaugh (02:39:37):

It's been interpreted in the regs, so to go to high school-

Mr. Mufan (02:39:39):

Exactly.

Justice Kavanaugh (02:39:39):

… and no one's ever challenged that part. That's the part, okay.

Mr. Mufan (02:39:42):

Right.

Justice Kavanaugh (02:39:42):

But that also, sex-separated sports teams are perfectly permissible under Title IX, at least with the Javits Amendment and probably without, correct?

Mr. Mufan (02:39:54):

That's right.

Justice Kavanaugh (02:39:55):

And that's conceded, but it's conceded again because everyone accepts that and has accepted that for a long time so long as the opportunities for boys and girls, men and women are equal.

Mr. Mufan (02:40:06):

That's right. I think what the other side in this case is trying to argue is say that's fine, but they're being excluded. The problem with that is they're not being excluded from being participating on the boys' team. They're choosing not to participate on the boys' team. Now, for understandable reasons given their gender identity, but the state is not excluding them from the boys' team. Justice Sotomayor, this explains the confusion in the Fourth Circuit's opinion because I agree with you. It is very strange that the Fourth Circuit said-

Justice Kavanaugh (02:40:33):

We got to go back. Sorry. Well, finish that off. Sorry.

Mr. Mufan (02:40:37):

The reason why the Fourth Circuit found that there was a viable Title IX claim, even though they said that there was a factual dispute, is because they bought into this notion that, because the transgender boy doesn't want to play on the girls' team, sorry, doesn't want to play on the boys' team and can't play on the girls' team, they're excluded, that's true even if they have a physical advantage. So the court said, "We don't care about the physical advantage. It's still a Title IX violation," and that's clearly wrong. That's a misinterpretation of the statute. The error in it is that they're not being excluded from the boys' team. They're choosing not to participate on the boys' team.

Justice Kavanaugh (02:41:09):

Sorry, one more, "Bostock does not control here because" fill in the blank.

Mr. Mufan (02:41:13):

Because the law doesn't classify on the basis of transgender status. It classifies on the basis of sex, biological sex. Just like in Skrmetti, the law there classified on the basis of age and medical treatment, here the law classifies on the basis of biological sex. The person's gender identity is wholly irrelevant how the law applies.

Justice Kavanaugh (02:41:30):

Thank you.

Mr. Mufan (02:41:31):

Justice Barrett? Justice Jackson?

Justice Brown Jackson (02:41:34):

But they are being prevented from playing on the team that matches their gender identity, correct?

Mr. Mufan (02:41:41):

That's the effect. Let me use your example from earlier. You said there is a cisgender woman, she could play on the team she wants.

Justice Sotomayor (02:41:48):

Right.

Mr. Mufan (02:41:48):

There is a boy who identifies as a girl. He can't play on the team he wants. Take that same boy and switch his gender identity but say he still wanted to play on the girls' team, say he was a very unathletic boy, he likewise couldn't play on the team. So it's not the gender identity that's keeping him off the girls' team. It's his biological sex. His gender identity is wholly irrelevant to it. Now, I agree with you, there's a very significant disparate impact on transgender individuals by this law because they're the boys-

Justice Brown Jackson (02:42:15):

I wonder-

Mr. Mufan (02:42:16):

… are most likely to want to play.

Justice Brown Jackson (02:42:18):

… have you said that Title IX never covers that kind of disparate impact in terms of its discriminatory effect?

Mr. Mufan (02:42:24):

Well, it certainly doesn't cover disparate… First of all, I don't think Title IX covers disparate impact period because it uses-

Justice Brown Jackson (02:42:30):

But in terms of its discriminatory effect, I'm just trying to understand it. Is there something to this notion that differential treatment in effect in this way could be something that Title IX cares about?

Mr. Mufan (02:42:43):

A, I don't think Title IX covers disparate impact even on the basis of sex. That certainly doesn't cover disparate impact on the basis of gender identity.

Justice Brown Jackson (02:42:51):

Okay.

Chief Justice Roberts (02:42:53):

Thank you, Counsel. Mr. Block?

Mr. Block (02:43:06):

Mr. Chief Justice, and may it please the court, B.P.J. signed up for school sports because she was an 11-year-old girl starting a new middle school who wanted to meet people, make new friends, and be part of a team. West Virginia argues that to protect these opportunities for cisgender girls, it has to deny them to B.P.J. But Title IX and the Equal Protection Clause protect everyone. If the evidence shows there are no relevant physiological differences between B.P.J. and other girls, then there's no basis to exclude her.

(02:43:39)
In thinking through the Title IX claim in particular, it's important to distinguish, excuse me, distinguish between how Title IX operates as a general matter and how it operates outside the context of athletics. I am glad that we're doing that this morning. Instead of focusing on athletics, West Virginia argues more generally that this court's reasoning in Bostock does not apply to Title IX. To distinguish Title VII from Title IX, West Virginia argues that Title IX protects groups instead of individuals and applies only when sex is the sole cause of adverse treatment. That approach takes a wrecking ball to the text of Title IX and the structure of this court's anti-discrimination precedents. It would dilute Title IX's protections for everyone, not just transgender students and not just in the context of sports.

(02:44:26)
West Virginia's law treats B.P.J. differently from other girls on the basis of sex, and it treats her worse in a way that harms her. Outside the context of athletics, that's all B.P.J. would need to establish a Title IX violation. But the Javits Amendment provides extra breathing room for reasonable regulations that take into account sex-based differences in athletics to provide equal athletic opportunity for everyone. West Virginia's exclusion of B.P.J. does not fall within that framework. Unlike the exclusion of a cisgender boy, excluding B.P.J. doesn't advance any interest in ensuring overall fairness and safety. And unlike the case of a cisgender boy, excluding B.P.J. from the girls' teams excludes her from all athletic opportunity while stigmatizing and separating her from her peers. I welcome the court's questions.

Justice Thomas (02:45:19):

Doesn't your claim ultimately depend on the existence of sex-segregated sports?

Mr. Block (02:45:27):

No, I don't think so, Your Honor. I think this is similar to Morales- Santana where the claim was an equal protection claim.

Justice Thomas (02:45:34):

Well, let's say there were no Title IX requirement for sex-segregated sports.

Mr. Block (02:45:40):

Well, if there were no Title IX requirement… Well, I don't think Title IX requires sex-segregated sports.

Justice Thomas (02:45:45):

Well, permits.

Mr. Block (02:45:45):

If there were no Title IX and all the sports were co-ed, then she wouldn't be subjected to disparate treatment on the basis of sex. So I think the claim is the discrimination, and it's perfectly possible to have it-

Justice Thomas (02:45:56):

Doesn't that suggest that your subcategory of the relevant class of female athletes? Isn't that your point?

Mr. Block (02:46:11):

Yes. Well, for the equal protection claim-

Justice Thomas (02:46:14):

Well, but my point is that you're challenging a category that does not exist in the statute but it's dependent upon the existence of a category in the statute that you're not challenging.

Mr. Block (02:46:28):

Well, I wouldn't put it that way. I would put it the way as there's a classification that we think is valid as applied to most people but is invalid as applied to a discrete subset of those people. But I don't think the success of that equal protection claim hinges as an a priori matter on the existence of girls' teams. There are lots of ways to remedy an equal protection violation.

Chief Justice Roberts (02:46:51):

But I think given the way you phrased it, the question becomes a little different because what it seems to me you have to establish is the basis for requiring an exception to the classification. You're not challenging the idea of having boys' and girls' separate sports. You're saying that you cannot exclude transgender girls from the definition of girls. That's an entirely different question than the equal protection question.

Mr. Block (02:47:20):

I don't think we're arguing for an exception. I think we're bringing exactly the same argument in Caban. In Caban, the plaintiff wasn't saying, "This is valid for everyone, but I want an exception from it." In Caban, the plaintiff was saying, "This is valid for other fathers, but it's not valid as applies to me." So I just think it's an as-applied equal protection claim. I understand the court might decide those claims don't exist, but I don't think it's a claim asking for an exception. It's a claim saying, "It's as-applied to them, it's okay. As-applied to me, it's not."

Justice Sotomayor (02:47:54):

Counsel, how do you get to a Title IX violation? I know exactly how you get to an equal protection violation. If you accept that the regulation does, by its own terms, permit sex-based sports, does permit schools to do this, what in Title IX explicitly or even logically says that you have to give transgender-

Mr. Block (02:48:31):

Thank you. I appreciate-

Justice Sotomayor (02:48:32):

… girls the same opportunity? Because, it's not just the statute, it's the regulation said you can create separate sex teams.

Mr. Block (02:48:45):

Thank you. I take the point. I think there's always been a tension between the underlying text of Title IX, which protects individuals not groups, and the regulations, which are authorized by the Javits Amendment and have special leeway to make some group-based measurements. But if you look at the rationale for the regulations, Hugh, when it issued the regulations, said that we think that our group-based method, which otherwise would've been completely impermissible for Title IX, adequately protects the rights of individuals because if boys and girls as groups are being given equal sets of overall opportunity, then every individual in the group also has a set of equal opportunity to choose from.

Justice Gorsuch (02:49:27):

Yeah, I think that's the problem. You're absolutely right to worry about the wrecking ball, but I think we've kind of taken a wrecking ball to that. There's no solely in the statute. We're talking about individuals. But Javits changed Title IX. It said sports are different. We've got these regulations that have been there for 50-plus years. Normally, Skidmore kind of comes in there, forget about the Spending Clause, I guess, but maybe I'll ask you about that, too. Why doesn't that make this case very different than Title VII?

Mr. Block (02:50:07):

I completely agree the Javits Amendment is what makes this different from Title VII. I'm very happy with however this decision comes out to have a decision that's focused specifically on the unique context of athletics as opposed to these broad arguments about Bostock applying to Title IX as a general matter. I guess what I'd say is the regulations still require equal athletic opportunity. It's not a complete exception for sex-separated teams-

Justice Gorsuch (02:50:32):

But Javits says it can be reasonable.

Mr. Block (02:50:34):

Yes.

Justice Gorsuch (02:50:35):

Do you dispute that the Hugh regulation that has been on the books for 50-plus years is reasonable?

Mr. Block (02:50:39):

I think it is absolutely reasonable as applied to cisgender students. I think that as applied to transgender students, instead of providing them equal overall opportunity, it's a complete exclusion from the program. So that's our argument, that it's reasonable as applied in the context of cisgender people, but interpreting the regulations to authorize this sort of categorical exclusion that doesn't give B.P.J. an equal set of opportunities to choose from would be an unreasonable way to implement Title IX.

Justice Gorsuch (02:51:10):

Gotcha.

Justice Alito (02:51:11):

It's unreasonable as to all transgender students?

Mr. Block (02:51:14):

No, I think it's a combination. A reasonableness test, I think that requires some sort of, excuse me, ends-means-fit, and I think that that exists when it comes to cisgender students. I think what makes B.P.J.'s case differently from a cisgender student is two things. First, she doesn't have any of the physiological distinctions that justify the sex separation in the first place. Second of all, the harm to her is of a material different kind. It's one thing to say, "We're not going to let boys play volleyball because they have all these other sports to choose from, or we're not going to let girls play football because they have all these other sports to choose from." It's another thing to say, "You don't get any sports."

Justice Kagan (02:51:59):

But in that argument, does it matter whether B.P.J. has a competitive advantage or not?

Mr. Block (02:52:06):

Yes, we think it does. I appreciate the opportunity to clarify that we don't have any objection to vacating the grant of summary judgment in our favor. We did our best to defend the judgment below. But our argument before the Fourth Circuit for summary judgment was that there wasn't a genuine disputed fact about whether she had an advantage. The Fourth Circuit sua sponte granted summary judgment to us based on the theory that that fact wasn't material. That's never been our argument in this case.

Justice Kagan (02:52:35):

So your argument depends on her not having a competitive advantage because she's not been through male puberty.

Mr. Block (02:52:46):

Not just been through male puberty, but also gone through a female hormonal puberty with all the physiological changes accompanying it.

Justice Kagan (02:52:55):

But the argument goes away if those facts go away?

Mr. Block (02:52:59):

Yes, yes, absolutely. At the beginning of the argument, Justice Kagan, you talked about this could be resolved based on a legal principle or based on the facts. I really do want to make a pitch for resolving it based on the facts. Because, look, if they're right about the facts, then we should lose. The irony is that in order to win summary judgment in this posture when there's a disputed question of fact below is they can only win in this posture if we're right about the facts and there aren't any advantages. I don't think there's any need at this juncture for this court to issue that broad a holding when, according to them, once the evidence comes in below, we're not going to get past summary judgment.

Justice Kagan (02:53:42):

You're not suggesting that we decide the factual question?

Mr. Block (02:53:45):

No, no, no. I'm suggesting that the case be allowed to be decided on remand on the factual question, which I think… Look, this is an important issue. It may affect the whole country, and the court wants to get it right. I don't think the best way to get it right is to rely on cherry-picked studies or assertions in amicus briefs. I think the way to get it right is to let all the facts they're trying to put in the record actually be put in the record. Then we'll have the facts in front of us, and maybe they'll make the issue go away. But I think it's unnecessary to intervene at this instance with a sweeping legal conclusion to something that might actually be a narrow factual dispute.

Justice Coney Barrett (02:54:27):

Counsel, can you explain whether or why your theory would allow a cisgender boy who just couldn't make the boys' team? He doesn't have an equal opportunity. He can't play. There's no team he can play on. Let's say that his athletic ability can be shown that he has no competitive advantage and he wants to be on the girls' team. Why can't he on your theory?

Mr. Block (02:54:50):

I appreciate the question. I just want to be clear about what we think the justification for the separate teams is. We don't think the boys' team is for better athletes, and you have a backup team for athletes that aren't as good. I think the purpose of the teams is to control for the variable of sex-based advantages so that talented women athletes have all the same opportunities as talented male athletes, but also untalented male athletes should be compared to untalented women athletes. They're not being separated based on how good you are. The whole point is to allow female athletes to have all the same opportunities as men by controlling for the sex-based differential that comes through puberty. That's why I don't think that the claim is the same there.

(02:55:41)
I think what's happened here is by virtue of her medical care, B.P.J. has already effectively controlled for those sex-based advantages, and so she is completely in the position that she would've been if her birth-assigned sex had been female as opposed to a cisgender boy who's just not very good at sports, and if his birth assigned sex were female, maybe he'd be even worse. I don't know. But, again, the purpose is to control for the variable of sex to provide equality, not to have a good team and a team for people that can't cut it. Now, I'm happy to address-

Justice Kavanaugh (02:56:17):

Can I ask a question on the law, on Title IX? I hate, hate that a kid who wants to play sports might not be able to play sports. Hate that. But it's kind of a zero-sum game for a lot of teams. Someone who tries out and makes it who is a transgender girl will bump from the starting lineup, from playing time, from the team, from the All-League, and those things matter to people big time, will bump someone else. So one way to resolve it, as you say, is the facts. Try to figure out, is there really a competitive advantage? I think we're going to get a lot scientific uncertainty about that, a lot of debate about that, a lot of different district courts.

(02:57:09)
The other way on the law, one way on the law is, well, sex in Title IX and in Javits meant biological sex, and it's up to Congress to adjust that going forward, if they want, given, as you say and your co-counsel said earlier, people are learning more about this, and maybe there really is no advantage. Well, if that's true, and some states are operating under that basis, that's the way to go. But for now, at least the law says biological sex. I think we have to recognize on both sides the zero-sum. It's not like, oh, just to add another person to the team. That's not how sports works. It's someone else is going to get disadvantaged. So I just want you to address that.

Mr. Block (02:57:58):

I'm happy to. I guess I have three answers. The first is I completely understand that many parts of sports are zero-sum, but this law isn't limited to zero-sum opportunities. B.P.J. played on the cross-country team where there were no cuts. She came in near the back. It wasn't-

Justice Kavanaugh (02:58:16):

I'm sorry to interrupt. But you wouldn't have a different rule if she was finishing in the top five.

Mr. Block (02:58:20):

No, no, no. But it wasn't a zero-sum-

Justice Kavanaugh (02:58:22):

… or if they had cuts.

Mr. Block (02:58:23):

But what I'm saying is there are-

Justice Kavanaugh (02:58:24):

In this particular case, but usually with teams, I don't mean to, don't want to get out of that, usually with teams, there are cuts.

Mr. Block (02:58:32):

Yes.

Justice Kavanaugh (02:58:32):

Those mean a lot to people. There are starting lineups. Those mean a lot to people. There's who gets a college recruit. That means a lot to people.

Mr. Block (02:58:41):

Yes, yes, yes. I just want to say that there still are some areas where there are win-win solutions. I think even being able to be on practices with a team consistent with your gender identity instead of your sex assigned at birth can be enormously important. I think some scenarios are zero-sum, but not everything having to do with sports is. I do think that one of the vices of this law is that it sweeps so broadly that even win-win solutions are taken off the table.

(02:59:10)
In terms of aspects where it's zero-sum, no one likes to lose and no one likes to not make the team. People often don't make the team. Cisgender girls don't make the team when competing against other cisgender girls all the time. The question I think is whether it's an unfair advantage to not make the team because a transgender girl participated. If there is no sex-based biological distinction there, then I think it's an unfortunate situation, but I think it's the unfortunate situation that comes with having a zero-sum game, not inherent unfairness.

(02:59:47)
Then the third thing is, I think however the court resolves this case, I really urge the court not to do it based on a definition-of-sex argument. We are not disputing in this case that West Virginia can have its definition of sex. Our argument is it's using this definition to inflict discrimination and deny equal athletic opportunity. But we are not saying their definition of sex is wrong. However, I don't think it follows that Title IX created some national definition of sex that preempted a state's ability to say, "Actually we are most concerned about discrimination that happens through gender roles." We think-

Justice Kavanaugh (03:00:28):

Can I ask you something? That's a very important point here. I think for what happens in the future, what you just said, do you think sex and Title IX can reasonably be interpreted to allow different states to take different understandings of that in their sports leagues?

Mr. Block (03:00:45):

I do, because I don't-

Justice Kavanaugh (03:00:47):

Why is that? That's real important I think going forward.

Mr. Block (03:00:50):

Because I don't think the purpose of Title IX is to have an accurate definition of sex. I think the purpose is to make sure that sex isn't being used to discriminate by denying opportunities, just as I don't think we need to define race in order to enforce Title VI. So I wouldn't look to whether or not it's accurate to classify B.P.J. as male or female. I think the question is, is she being denied an opportunity because of that classification? Obviously, sex can mean more than just the-

Justice Kagan (03:01:23):

If we didn't want to prevent a different state from making a different choice from West Virginia, what should we not say or what should we say to prevent that from happening?

Mr. Block (03:01:36):

Well, I wrote down the answer to that when you asked Mr. Mooppan. I have two things. I wrote, "Don't give definition of sex." I also said, "I wouldn't decide this by assuming the Title IX provides a right to single-sex teams." In the regulations, single-sex teams are optional. They're not mandatory. We've been talking about the regulations. But on the ground, the way this plays out in practice is you have a 1979 policy statement, a sub-regulatory document that has a complicated test for determining when a sex-separated team is or is not required. So I think that both because I think saying there's a right to a sex-separated team would predetermine some of the questions in that other case. That's one reason why I don't think you should do that. Second, I think the more the court gets into questions that are handled in these complex regulatory documents, I think the more I'd be worried about this court accidentally saying something about how Title IX works that doesn't actually map on to how it is actually playing out on the ground.

Justice Alito (03:02:42):

Title IX prohibits discrimination on the basis of sex. It's a statutory term. It must mean something. You're arguing that here there's discrimination on the basis of sex, and how can we decide that question without knowing what sex means in Title IX? It could mean biological sex. It could mean gender identity. It could mean whatever a state wants to define it to mean, but it has to mean something. How can we decide that without knowing what the statutory term means?

Mr. Block (03:03:17):

Well, I think there are a whole range of sex-based characteristics that can give rise to discrimination. I think if someone said, "I'm going to discriminate against anyone who acts in a feminine manner, like anyone with limp wrists, I don't care who they are, but I'm going to discriminate against them," I think that would be sex discrimination. It would be sort of gender presentation. But I wouldn't say that's not covered by Title IX. I'm not saying that biological differences aren't part of sex. But I'm saying that sex also has broader connotations, and there's no reason to keep that out of the statute. I'm certainly not saying that sex means gender identity. I just want to be very clear about that. I don't think that just as…

(03:04:02)
I would say this, our argument is that there's a group of people who are assigned male at birth for whom being placed on the boys' team is harmful. We happen to have a word for those people. It is transgender girls. But I don't think that means that we're elevating gender identity to be the new definition of sex. Just as in Phillips versus Martin Marietta, there's a subset of women who are harmed by the policy, not all women, but there was a subset of women who had young children. There's a name for them. It's mothers. But that doesn't mean that we're replacing the word sex with mothers. I think this issue-

Justice Brown Jackson (03:04:42):

How do you respond to or deal with the other side's characterization of that harm as just the disparate impact of this regulation that really it's not discrimination, I think they're saying, but it is just the downstream effect of the application of the classification that the Javits Amendment allows, and that's just the way it goes?

Mr. Block (03:05:08):

I guess I would say this. I think this court has dealt with the issue of things like constructive denials and constructive discharges in a variety of contexts. Under Title IX, an outright denial isn't required. Javits says a constructive denial also counts. Whenever there's a question of constructive denials, the court applies a standard that's reasonable person in the plaintiff's position under all the circumstances. They use that for constructive denials. You can use that for retaliation claims. If you look at Burlington versus White, I think it's very on point here. Because one of the points that Burlington versus White said is that there are some actions that aren't going to be harmful to most people, but they might be harmful to some people. Again, Burlington versus White used a mother with young children might find a change in her work schedule to be incredibly harmful. That doesn't mean

Mr. Block (03:06:00):

Mean that we're arguing that this is a disparate impact classification on people who have young children. It's sex classification. The sex classification is just harming some people and not harming other people. So that's how we would view it. I think this is a facial class sex classification any way you cut it and some-

Speaker 26 (03:06:21):

I'm sorry, you don't think we should have an operating definition of sex in Title IX? Now, I understand the idea that… The question then becomes not whether or not there's discrimination on the basis of sex, but whether there's discrimination on the basis of whatever characteristic you think should be included in the definition of sex. Now, when it's used as a statutory term, I'm not sure you have that kind of flexibility. The question when would be instead, what does Congress think the word means?

Mr. Block (03:06:54):

Your Honor, I guess I'd say I think Congress-prohibited discrimination based on sex. I don't think-

Speaker 26 (03:07:00):

I'm sorry, go ahead.

Mr. Block (03:07:00):

Yeah, and so sorry, just as I don't think Congress adopted a definition of race in Title VI in order to prohibit discrimination on the basis of race. I think I'm not trying to police the accuracy of the terminology that's being used. All I'm saying is that what's being prohibited is using this classification to discriminate, not-

Speaker 26 (03:07:25):

But without really knowing what the this distinction is.

Mr. Block (03:07:30):

I don't think the examples I've given about sex-based characteristics like fall outside the common understanding of things that are related to sex.

Speaker 26 (03:07:39):

Related to sex. I guess what you're saying is then we do have to accept for your position that when Congress says sex, we're not dealing with biological sex, but we're dealing with other characteristics that people might associate with sex?

Mr. Block (03:07:56):

No, no, no. I think for this case, you can accept for the sake of this case that we're talking about what they've termed to be biological sex. I think that resolves this case. I was just talking about in addressing other potential cases.

Speaker 29 (03:08:10):

So we don't have to say anything about the matter, you're willing for us to proceed on that assumption?

Mr. Block (03:08:15):

Exactly. Just like in Bostock, I think you can proceed for argument's sake without taking a definitive position here, because it might have downstream consequences in other cases that even the United States doesn't want the court to prejudge here. Now, I, would like to say one quick thing on Justice Barrett's reference to separate classrooms. It is true and the ACLU's litigated cases about theories that there's different brain sexes for women versus boys, and that's why you need separate classrooms. I think the instinct was completely correct that you can have a lot of scientific justifications for discrimination. That doesn't mean that the discrimination is allowed or immune from scrutiny. In fact, some of the studies that are cited in the amicus brief say boys are naturally more aggressive and favor competition more because that's in their DNA. So I do think even in these studies, the idea that you're completely just basing it on pure biology and not on other generalizations doesn't quite hold up.

(03:09:28)
To the extent that we want to go back to Caban, I do want to just make a couple quick things clear. CABAN was not a facial challenge. It wasn't. Some of the First Amendment cases they were talking about weren't equal protection First Amendment cases, they were commercial speech cases. Michael M. also wasn't a facial challenge. He wasn't saying, "I should have an exception because the pre-pubertal girl was involved," he was saying the statute is over broad because in theory it could apply to a pre-pubertal girl. So I do think that some of the characterization of the cases doesn't hold up to our reading of them.

Speaker 27 (03:10:05):

So how does a Caban type as applied intermediate scrutiny analysis work in your view? It is an underdeveloped area of the law. Is it enough for one person to show that she bucks the trend or not?

Mr. Block (03:10:21):

Yeah, I don't think so. I agree with my co-counsel that I think we're talking about a discrete, definable group that will reliably not serve the government's interest. And I don't think Nguyen is a counterpoint to that because the whole point in Nguyen was that men who were not similarly situated had an opportunity to demonstrate that. There were three very easy methods of transmitting citizenship, and Nguyen emphasized that in order to do it, that those were minimal burdens. And that is the key fact in Nguyen that distinguishes it from this case. This is a categorical ban and Nguyen and Caban and all the court's cases distinguish between categorical bans and more narrow procedural requirements that do treat men and women differently, but still provide the opportunity for demonstrating that you're not similarly situated.

Speaker 28 (03:11:15):

I think a hard question that Ms. Hartnett got, maybe the hardest question on these lines, was if we recognize these sorts of as-applied challenges, doesn't that effectively turn intermediate scrutiny into strict scrutiny?

Mr. Block (03:11:29):

Right.

Speaker 28 (03:11:29):

What would your answer be to that? Would it be any different, or do you want to elaborate?

Mr. Block (03:11:33):

I think the answer is it absolutely wouldn't. You still are only looking for a substantial relationship, which means that you can have these sorts of requirements where there are a lot of under Caban and under Lehr, there's still a lot of fathers that are out of luck that they actually probably do have a good relationship with her kid, but they didn't fill out the right paperwork, they didn't do this, they didn't do that. Heightened scrutiny doesn't require that they be excused from those procedural burdens. So I do think that heightened scrutiny allows you to have procedural requirements that people have to go through, and those can be enforced. Strict scrutiny does not allow that. But that's different from saying that if the complete rationale for a classification just doesn't apply to you, that there's no equal protection claim you can bring.

(03:12:22)
It's complicated to talk about the difference between facial and as-applied post-CASA, because I think a lot of the things that we called facial challenges now would be viewed as overbreadth challenges where someone is trying to say the law is so over-broad in general, it has to all be struck down, and we have that for First Amendment. I don't think we have that anymore for most equal protection claims. And so I think taking this facial as applied framework from before CASA, where we allowed these facial attacks on statutes and then just transporting it into as-applied cases post-CASA doesn't necessarily work. I think some of the terminology might need to be rethought. And so again, that's another reason why there's not a lot of precedent in this area as several you all have acknowledged, and that's another reason why I don't think this should be the case that makes that precedent when it's unnecessary to do so.

Speaker 26 (03:13:19):

Thank you, counsel. Justice Thomas, Justice Alito, Justice Sotomayor?

Justice Sotomayor (03:13:25):

Would you address a little bit the quantum of certainty or uncertainty that would have to exist in the science? Your co-counsel or the council in the other case said that if it's 50%, the state loses. I'm always hesitant about these percentage cases because it's never quantitative, it's qualitative. So what do you think the qualitative standard is?

Mr. Block (03:13:58):

To be clear, I don't actually think there's uncertainty. In the case of someone who's had puberty blockers and then gender-affirming hormones, our position is there's zero uncertainty. It's actually clearly in our favor. But in general, I think it's hard to give a quantitative answer to that. I think part of heightened scrutiny involves taking all of these factors into account. This court has said on several occasions that heightened scrutiny can accommodate deference. And I honestly think it's a case- by-case decision that also looks at how harmful the classification is, how burdensome it is. I don't think you just look at the accuracy of the classification and add a number value for how certain we are that it's accurate. I think many other factors come into play.

Justice Sotomayor (03:14:49):

Thank you.

Speaker 26 (03:14:50):

Justice Kagan. [inaudible 03:14:53]. [inaudible 03:14:55]? Justice Jackson? Thank you, counsel. Rebuttal, Mr. Williams.

Mr. Williams (03:15:03):

I think you've now heard respondent abandon the Fourth Circuit's logic on Title IX, and I think in many ways that makes this Court's task that much easier. Congress-authorized regulations allowing sex-separated athletics. West Virginia's definition of sex tracks the ordinary meaning in 1972 and 1974, and the regulatory framework that Congress endorsed. I think Mr. Chief Justice, your question really highlighted how B.P.J.'s approach unmoors the statute and the regulation under Title IX on the basis of sex. B.P.J.'s test in turn begins to look more towards other characteristics that aren't on the basis of biological sex, and I think that's not consistent with what we see there. I also think the answer to Justice Barrett's question reflected how under B.P.J.'s theory, this really isn't about competitive advantage, that really what this does turn on is gender identity. Because B.P.J. continues to maintain that a cisgender boy who continues to not have those same biological advantages would nevertheless still be kept off of the girls' sports team.

(03:16:03)
So if you endorse that philosophy that would require the court to hold that long-standing Title IX athletic regulations are unlawful, it would eliminate sex-separated athletics entirely, and I think it would defeat Title IX's core purpose of ensuring equal athletic opportunity for both sexes. I'll see judgments. I think the court just recently said that in Skrmetti, but I certainly don't think that case stands alone in recognizing that, especially when you have competing balances of harms, Justice Kavanaugh, when you're weighing these sorts of zero- sum games, that's a choice, that's a policy judgment that ultimately rests in the hands of the legislature.

(03:16:35)
In the end, this court has, quote, "Recognized physical differences between men and women. They're enduring. And inherent differences between men and women are caused for celebration." That is all that West Virginia's law does hear. It should be upheld. Thank you.

Speaker 26 (03:16:49):

Thank you, counsel. The case is submitted.