Two transgender sports cases about to be heard back-to-back by the Supreme Court this week will weigh the biological advantages that male athletes have over women and young girls.
At issue in Little v. Hecox and West Virginia v. B.P.J. is what makes the two sexes biologically distinct. Opponents of gender ideology are looking to the highest court to settle this question, the basis for safeguarding female sports against the intrusion of males, typically taller, larger, stronger, and faster than them by nature’s anatomical design.
The boy who took puberty blockers versus the man on testosterone suppressants
Though the cases are almost identical, Hecox was initially brought by a male Boise State University student targeting an Idaho law, the Fairness in Women’s Sports Act, that limits participation in single-sex scholastic athletics by biology. B.P.J. challenges a similar West Virginia statute, the Save Women’s Sports Act, but centers on a minor male.
Therein lies an important distinction differentiating these parallel cases. Lindsay Hecox is a fully formed man, a 25-year-old adult, taking testosterone suppressants while B.P.J. was a middle school boy, at the time of the original lawsuit’s filing, whose puberty was medically paused.
Due to this delineation, the American Civil Liberties Union, which is arguing both cases on behalf of the transgender litigants, has a better chance at arguing B.P.J. than Hecox, former ACLU attorney Kara Dansky previously told the Washington Examiner.
“That’s why it wants the Idaho case to go away, but is holding on to the West Virginia case,” Dansky said of the ACLU.
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Ahead of oral arguments, the ACLU tried—and subsequently failed—to withdraw its initial complaint in Hecox, the Idaho case, and asked the Supreme Court to dismiss the matter altogether.
Optics-wise, B.P.J. does a better job at tugging on the heartstrings, when framed as a then 12-year-old just wanting to be “included” by his peers. Whereas as in Hecox, the litigant is a grown man on cross-sex hormones desiring to compete collegiately against women.
Some legal observers likewise suspect that the drastic differences in physical development between the two plaintiffs is likely why the ACLU had scrambled to pull Hecox, since that case, on the surface, looks like more clear-cut discrimination against female athletes. B.P.J., comparatively, never developed masculine secondary sex traits because of the puberty blocking medication.
The transgender movement also appears to be pumping the brakes in light of the ACLU’s historic loss in United States v. Skrmetti, which ultimately upheld a Tennessee law banning puberty blockers, hormone-replacement therapy, and surgical procedures for treating gender dysphoric children. More than half a year later, the landmark ruling from June looms over how the ACLU is handling Hecox and B.P.J., seemingly with less aggressiveness.
“There is no doubt that the ACLU would be better positioned if these cases had come before Skrmetti,” explained Elspeth Cypher, a retired Massachusetts Supreme Court judge.
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As to why the ACLU considers Hecox moot, some legal analysts speculate the ACLU knows it cannot convince a conservative-majority Supreme Court, especially post-Skrmetti, that adult male athletes should be considered women simply because they suppress their testosterone levels or take estrogen.
In B.P.J., the ACLU may be able to assert, with less pushback, that underdeveloped males can compete in female-only sports if they had their puberty blocked beforehand.
Still, at practically any age, females are susceptible to sexual harassment if a male is able to infiltrate their intimate spaces, Cypher told the Washington Examiner.
“[A]ll you have to do is look at the behavior of many of these so-called transgirls in locker rooms to see that the boy is certainly there,” Cypher countered, referencing a report that B.P.J. allegedly repeatedly threatened to rape a female teammate while in the girls’ locker room.
According to the girl’s mother, B.P.J. kept approaching the athlete and threatening at different times, “I’m going to stick my d*** in your p***y and also in your a**.” The boy is also accused of telling her, as well as other female teammates, to “suck my d***.”
In another alleged incident, a girl on another team said B.P.J. made crude comments about her body, saying “she has more testosterone than me.”
The question of biological advantage
West Virginia Attorney General John “JB” McCuskey, who will be arguing the state’s case in B.P.J., said the ACLU is complicating matters by belaboring physiological factors, like hormone levels and pubescence, as ways to discern which male athletes supposedly do not have an advantage over their female counterparts.
Factoring in such elements to tell the males apart opens the door to a host of unnecessary and intrusive practices in school sports, McCuskey told the Washington Examiner.
“Their solution to this problem,” McCuskey said, “would create a wildly untenable system of sports in this country where children would be subjected to genital checks, to hormone checks, to blood tests, you name it, to determine who had the right amount of testosterone or who didn’t.”
Meanwhile, the West Virginia law established a simple system, McCuskey said. As written, the state statute categorically forbids boys from joining female teams and vice versa.
Whether the justices will take biological advantage into account in their decision depends on how they approach the issue of sex-based discrimination.
“They may decide this case without deciding whether there is a biological advantage simply by saying males do not have a constitutional or statutory right to play on female teams,” Cypher said. “Or they could discuss the biological advantage and explain that that is why we have a separation between sports based on sex in the first place.”
When writing the majority opinion, the justices may decide they need not get bogged down in the details of where to draw the line on biological development. The court could simply rule that sex is sex, irrespective of cosmetic changes to the body or chemical suppression. Alternatively, the justices might give a definitive answer on male advantage, upholding that it is the very reason that sex-segregated sports exist.
Restricting certain sports to single sex ensures that female athletes are not deprived of fair playing fields, denied equal access to equal athletic opportunities, or exposed to heightened risks of physical injury, especially during high-contact sports.
“I am not sure that we need a biologist to explain this,” Cypher quipped.
Cypher, who is currently serving as secretary of the Women’s Liberation Front (WoLF), a women’s advocacy organization, recalled that philosophers, in ancient times, posited that women were merely weaker, unformed, or defective men.
Today, it is commonly understood that women are human beings in their own right and have a completely different developmental path, differing sizes of organs—the heart, for example—and a unique reproductive system.
“To say that a male can take hormones or have surgery, put on a dress, grow his hair and ‘be’ a female is insulting to women and denies our inherent wholeness,” Cypher said. “And, it would put us back in that ancient philosopher position of considering us as ‘lesser men.’”
WoLF’s vice president, Margot Heffernan, who will be one of the speakers outside the Supreme Court on the day of oral arguments, noted the transgender lobby has a stable of skewed studies they trot out to cast doubt on the obvious sex-derived differences in athletic performance.
Heffernan pointed to a 2019 Washington Post article, titled “Five Myths About Testosterone,” citing two studies that concluded that one’s amount of testosterone is not a key determinant of athletic ability.
Heffernan, a medical researcher who writes for legal and healthcare professionals, said gender theorists try to muddy the water with these dubious data points about biological advantage. The Washington Post piece, for instance, jumps to concluding that testosterone levels, though not the prevailing indicator of success in sports, also do not play a role in the differences between males and females when it comes to athletic capacity.
What a definitive answer on male advantage would mean for females at large
As for the legal implications of a ruling officially recognizing male advantage, Cypher said, “For girls and women, we might be able to give a sigh of relief because our legal status as adult human females cannot be challenged. Our intimate spaces cannot be invaded because a male feels like a woman.”
However, added Cypher, some skeptics on the feminist front fear that a favorable ruling for female sports could inadvertently hurt women, regressing societal thinking back to believing that girls cannot be in certain jobs or perform particular tasks.
“We are still dealing with these stereotypes now,” Cypher said. “We would not be where we are now constitutionally, without intermediate scrutiny in recognition that sometimes sex does matter.”
Should the Supreme Court side with Hecox or B.P.J., feminists foresee the end of female sports entirely. The number of men willing to enter competitions as women because they can win that way foreshadows Hecox and B.P.J. further opening the floodgates, welcoming more males to take titles from female competitors.
Hecox and B.P.J. sued their respective states on grounds that sex-separated sports unconstitutionally discriminate against athletes with “transgender status.” If the court concluded that the 14th Amendment’s Equal Protection Clause applies to transgender-identified men, as Hecox and B.P.J. are arguing, but with intermediate scrutiny, then they would be on the same footing as women with regards to civil rights protections.
Women are a protected class under anti-discrimination law, such as Title IX of the 1972 Education Amendments, which prohibits federally funded educational programs from discriminating on the basis of sex.
Title IX’s application and the applicability of other civil rights laws designed to protect females from sex-based discrimination have been hijacked by men claiming to be women. Much of that lawfare weaponizing these civil rights protections, such as B.P.J. claiming that separating sports by biological sex violates Title IX, was emboldened by former President Joe Biden redefining “sex” to include gender identity in a 2021 executive order.
In effect, Biden’s edict expanded Title IX’s coverage, writing it away from its original intent of protecting female students. President Donald Trump restored biological truth to Title IX when he retook the White House by issuing mandates that rescinded Biden’s revisionist rewrite.
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Gender ideologues, via various lawsuits, are now demanding that the government give deference to self-asserted gender identity over biological sex, an immutable characteristic, which would render the sex class arbitrarily defined.
According to women’s rights advocates, the biological category of woman would be essentially erased, swallowed by a subjective sense of self. They warn that this supplanting of biological sex by gender identity would then allow men to identify as women and accordingly be recognized as such in the eyes of the law, regardless of biological reality.
Jack Birle contributed to this report.
