The Supreme Court Cases That Could Redefine Women’s Sports
00:02Keep sports, sports fair!Keep sports fair!Keep sports fair!That was the scene outside the U.S. Supreme Court Tuesdaywhen the justices heard arguments on two landmark cases being considered together.The ACLU versus West Virginia and Idaho's Little v. Heccox.Both cases center on the question of weather states can enact laws to protect girls and women's sportsby barring males from competing in them.
00:30Pro-transgender activists argue that it's discrimination to keep men who,who identify as women out, while the pro-women sports side argues that common sense, science,and Title IX in the Constitution are on their side. While not all oral arguments and casesoffer fireworks, several moments from Tuesday's session went viral, including when the pro-transgenderside failed to define what makes a boy or a girl.We do not have a definition for the court.And when Justice Brett Kavanaugh made clear that sports are ultimately a zero-sum game.And I think we have to recognize on both sides the zero sum.
01:05It's not like, oh, just to add another person to the team.That's not how sports works.It's someone else that's going to get disadvantaged.In this episode, Alliance Defending Freedom's Kristen Wagonerjoins us to discuss the key moments from the argumentsand why women's sports advocates are feeling more energized than ever.I'm Daily Wire Executive Editor John Bickley with Georgia Howe.This is a special Legal Wire edition of Morning Wire.
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03:42Nice to see you. Thank you for having me.So this was a massive week for women's sports. We at the Daily Wire were on the ground thereoutside the Supreme Court. It was pretty remarkable sight. There was the pro-women sportsadvocates. There were the transgender activists. There were snipers positioned there to protectpeople. It was intense.But there was also a lot of optimism from the pro-women sports side coming out of this.In fact, let's start there before we talk through some of the highlights.Big picture, what was your takeaway from how the justices responded to both sides of the cases?
04:14I'm optimistic about how the justices will rule.I do think that they will rule to uphold equal opportunity and fairness and safety for women.And that's thrilling after such a long time of not having it on the field.Now, there are 27 states that have protections for women.23 do not. They often actively force schools to accept boys and girls' sports. So major ramificationsfor every single state, of course. Briefly, if you would, can you summarize these two cases for us?First, they're being argued together because they're effectively the same case. And in both cases,the state's attorneys general are defending the state's laws and ADF is helping them do so.
04:54What do listeners need to know for context here?Alliance Defending Freedom has been representing female athletes for the better part of 10years. Some are in states that are protecting women and others are in states that are violating theirrights. What the issue was before, the Supreme Court yesterday, involved whether states have theright to protect women's equal opportunities on the playing field. So it's the 27 states and whetherstates can proactively do the right thing. In terms of the 23 states, we heard at oral argumentssome discussion about the justices kind of thinking ahead what comes next and how will thisruling play out in those other cases as well. And in terms of the two states, what are the two laws
05:37that are being defended here? Essentially, they are Fairness in Women's Sports Act or Save Women'sSports Act. They have different names, but they're all focused around ensuring that male athletesare not playing in the female category. And that can occur both at the collegiate level,but also we can think of high school and middle school levels. There are two laws that are in play,one from West Virginia, one from Idaho. We have the privilege ofstanding alongside the West Virginia and Idaho attorneys general as they defended their laws.But we also represent three female athletes in these cases. And two of those athletes had to playmultiple times or had to run against a male athlete multiple times. And that male athlete
06:18actually took the big sky championship away from another deserving female athlete. We also representLainey Armistead out of West Virginia who went to school on a scholarship. And under Title IX,there are a finite number of scholarships that you can get.And so every time one of those scholarships goes to a man in the women's category,a deserving woman doesn't get that scholarship.Right.So let's get to the highlights from Tuesday.A lot went on.
06:45We said at the top of the show, a lot of oral arguments don't go viral,but that's not the case for what we heard on Tuesday.A lot of moments really made the rounds online.What were some of the moments that you felt really defined Tuesday's session?First and foremost, it was just how the ACLU was running away from their own arguments that we've been litigating in the past 10 years.They are scrambling as fast as they can because they don't make sense.And even the lower court decision below out of the Fourth Circuit Court of Appeals in the West Virginia case, they basically acknowledged the Fourth Circuit got that wrong.They didn't even try to defend it.
07:24They also refused to define what sex is.And if you're unwilling to define what sex is, it makes it awfully hard to prove sex discrimination, which is what these arguments hinge on.Right. I want to tee up that moment. It actually is pretty remarkable. You can feel it in the courtroom, a sense of shock with the follow-ups from the justices.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.Well, how can a court determine whether there's discrimination on the basis of sex without knowing what sex means?You could almost hear a pin drop in the courtroom when the ACLU refused to acknowledge what a woman was,
08:17refused to define what a woman was, and it was a very important moment that Justice Alito took the advocates through,one to highlight the fact that they weren't willing to define it.But two, in certain parts of the argument, they actually did say, we're not challenging the differencebetween male and female. And so then Justice Alito took them through and said, well, then essentially,what are you challenging? What is the issue? Because the law protects against sex discrimination.And in the end, you can hear the advocates say that essentially they're the ones that are willing toengage in discrimination on the basis of gender identity because they're saying, well, it's good enoughif you take testosterone suppressants and puberty blockers,
09:00you should be treated as a woman.But if you self-identify and you haven't taken those steps,then you can't be treated,even if you identifies the opposite sex.So I think Justice Alito is highlighting in that exchangekind of the incongruity of the arguments.You can't have it both ways.Related to that, one of the moments that stood out to me
09:20was when the ACLU attorney acknowledgedthat it's not actually bigoted to recognize the differencesbetween men and women.How do you see that in terms of legal arguments?Well, in court, the ACLU has acknowledgedthat they aren't going to call those of uswho believe in the male and female categoriesis bigoted.
09:39But if you stood outside on the court steps like Daly Wire did,I'm sure that you were hearing some names being called.We know what's going on in the public square,but the decorum of the court is such that you can't make those allegations.Justice Alito was right to bring it out and to call it outand to, again, just reaffirm that these categories mean something.Another interesting aspect of the case is that, you know, they essentially claim there should be special exemptions, special treatment rather than equal treatment.And the Equal Protection Clause requires equal treatment.
10:12And so I think you could hear Justice Alito getting into those questions to also demonstrate to the rest of the court that there is equal treatment here, and that treatment is between the sexes, which is what matters.All right, suppose this school that has a boys, 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 birthand has never taken puberty blockers, never...taken female hormones, never had any gender altering or affirming.Surgery says, nevertheless, I am a woman. That's who I am.Can the school say no, you cannot participate on the girls' team?
11:13Sorry, so you're 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? Yes, they can.Yes, they can.But that person, is that person not a woman in your understanding?The person says, I sincerely believe I a woman, I am in fact a woman.Is that person not a woman?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
11:42going 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 would be testingthat hypothetical.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 thebasis of transgender status.There's great irony in that the ACLU just launched its campaign called More Than a Game,which is supposed to continue to push on resisting biological reality on the playing field.
12:14And it was clear that Justice Kavanaugh understood what that meant in the courtroom,as he laid out for the advocates that this.This is essentially a zero-sum game, and it's not just about trophies or podium spots,but about whether girls can even make the team, whether they even get on the roster,and how much that matters to them.We have, it's kind of a zero-sum game for a lot of teams.And someone who tries out and makes it, who is a transgender girl, will bump from thestarting lineup, from playing time, from the team, from the all-league.
12:51and those things matter to people big time will bump someone else and so one way toresolve that as you say is the facts try to figure out is there really a competitiveadvantage I think we're going to get a lot scientific uncertainty about that a lot ofdebate about that a lot of different district courts the other way on the wallone way on the law is okay well sex in title nine and in jabbit spentbiological sex and it's up to Congress toadjust that going forward if they want given as you say and your co-counsel said earlier you knowpeople are learning more about this and maybe there really is no advantage well if that's true
13:35and some states are operating under that basis that's that's that's the way to go but for nowat least the loss is biological sex and I think we have to recognize on both sides the zerosum it's not like oh just to add another person to the team that's nowsports works, it's someone else that's going to get disadvantaged. So I just want you to address that.That was the one moment where we heard something about the girls that are impacted, and I was thrilledto hear it. But I hope that the rest of the justices understand what's at stake.Now, there was some concern raised from the right side of this argument, the pro-women sports side,about the language that the justices used left-wing gender identity language to be specific.
14:18Here's some of that impact.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 thecisgender male who has taken no steps and who is now trans to exclude that person.All the scientific evidence showed that there's no difference between cisgender girls and trans girls.I know there's a fight for cisgender girls they can play consistent.with their gender identity for transgender girls, they can't.What did you see there?Were they trying to present the arguments in the language of the ACLU to sort of be fair?
15:00Or was this really the court buying into some of this gender identity language?I've sat through a lot of arguments.We've had 20 cases before the court in the last 10 years.And I have to say that was probably one of only maybe two times that I have been deeplydisturbed by some of what I heard.I'm not going to speculate as to why the justices were using the left's language, but it wasideologically loaded. And they may be trying to just make sure that those who are in the courtroomfeel like they are respected and getting fair treatment. But the court is a court of precision.
15:39It's a court of words. And so when you refer to a cisgender girl as if that's somethingdifferent than a girl, I think that that sort of gives away the argument.in some ways. We have to get back to a place where we are looking at men and women. And if we'retalking about those who identify as the opposite sex, then we say that it's men identifying aswomen. But there's no such thing as a cisgender girl, and there's no such thing as atransgender girl. Like you said in the end, you're seeding the entire argument if you seed thelanguage, though maybe we shouldn't read too much into this. That said, the questions from the judgeswere clearly leaning very heavily to the pro-women sports side.
16:19Were there any other patterns that you witnessed on Tuesday that stood out to you?I wouldn't read too much into the language, but I do think that it's important.We continue to insist on biologically correct terms.And what I didn't hear in the courtroom that really just struck me as being so disappointing,I didn't hear about the women.And actually, it didn't disappoint me.It angered me.It's probably the first time I wanted to stand up and shout, what about the women?
16:48not just the women in this case, but the male athlete in West Virginia displaced 423 girls 1,100times and took 57 medals away from them. Five girls protested from another team, and in theirprotests, they were punished by their school. Their school didn't stand up for them. And then, of course,we have Adelaia Cross, who was on the team and suffered sexual harassment and even threats in the lockerroom. And we have the UN study that says 900 medals were taken, you know, in competition as well. Sothere was so much focus on, you know, with the ASEO you was saying, a boy who identifies as a girlwho wants to play sports, but no focus on the rights of women. And we should not have tosurrender our rights because a male is identifying as a woman. What about particularly from the
17:39progressive side, the left-wing side of the court, were there any questions from that side that youwere encouraged by in terms of the pro-women arguments?I think there was general consensus that males have an advantage over women.And so I was encouraged that Justice Kagan, as an example, was grappling with what theargument was of the ACLU in terms of under the Equal Protection Clause, how they would actuallyprove without completely messing up the constitutional standards that are already in place.We often say as applied challenges are the preferred mode of constitutional adjudication.Certainly, we have not erected like bars to them in any other area as far as I understand it.
18:24And then in equal protection law, we say all the time things like people need to be treated as individualsand not as just as members of a group.And I'm wondering whether both of those principles don't suggest that any bar,on equal protection as applied equal protection challenges is just wrong. It's off. And then the secondthing I want you to do after you do that is assume for me that there is such a thing. And to tell mehow, in your view, an as applied equal protection challenge ought to work in this case.Essentially what the ACLU is arguing under the constitutional argument is for anindividualized analysis and an individualized level of scrutiny that requires a perfect fit.
19:16So I don't want to go too deep in the weeds on that. But that would be impossible. That wouldmean every time the state passes a law, if someone could demonstrate that the reason for that lawdoesn't apply to them, they likely would have a constitutional argument under the Equal Protectionclause, which is, you know, absolutely crazy. Yeah, wouldn't this ultimately require genetic testingin all kinds of rigorous ways of assessing somebody's particular attributes and qualifications at any given moment.Is that what this would devolve into?Yes, because they are saying you take into account all of these different attributes.And of course, it muddles the meaning of sex.
19:53If it's impossible to define sex, we need to understand that's going to affect a whole host of laws and, frankly, all of Western civilization.If we are denying the created order and biological truth and the fact that there are legitimatedifferences between men and women. And that's truly what's at trial in this case, is whetherthose differences can be taken into account by states. The answer has to be yes, that they can.To wrap up here, you mentioned that the girls that are at the center of these cases were notmentioned on Tuesday. So let's close out by talking about them. You've been in close contact with them.How did they respond to the events of Tuesday? They were thrilled. We had a wonderful gala that youwere at even where we brought the whole movement together to just celebrate what had happened in the
20:42milestone that was created and giving them a chance. And we had probably three dozen girls who cameto the stage who were litigants in the case, in different cases along the way, who have stood fortheir rights. And they have suffered as a result, not just on cancellation or censorship, but realtangible penalties. I think they were disappointed not to hear more about those who are experiencingthis in the courtroom, but outside the courtroom, they did everything they could to have theirvoices heard. It was truly powerful to see all of them on stage together. It took a lot ofcourage for them to speak out. And now we have the Supreme Court finally considering theirarguments. Kristen, thank you so much for joining us. Thank you. That was Kristen Wagner,
21:27president and CEO of Alliance Defending Freedom. And this has been a Legal Wire edition of Morning Wire.
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