A pair of lawsuits challenging state protections for girls’ sports has reached the U.S. Supreme Court, where the nation’s highest judges appear inclined to side with state governments seeking to prevent biological boys from competing as girls. Oral arguments were heard Tuesday in the cases Little v. Hecox and West Virginia v. BPJ, originating from Idaho’s and West Virginia’s state laws, respectively, barring biological males from competing in female sports. In both cases, Republican-appointed justices seemed to favor upholding the state laws.

In Little v. Hecox, Chief Justice John Roberts questioned Kathleen Hartnett, who argued on behalf of the transgender advocates, driving at the heart of the issue before the court. “I wonder if you could address what has been, I think, the basic focus of the discussion up until 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,” he asked, “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.”

“On the issue of discrimination on the basis of transgender status, let me just go back to — let me go to some basics,” Justice Samuel Alito said, also addressing Hartnett. He asked if schools can have separate teams for a category of students classified as boys and a category of students classified as girls. “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?” he asked. “And what is that definition? For equal protection purposes, what does — what does it mean to be a boy or a girl or a man or a woman?”

Justice Amy Coney Barrett also zeroed in on the biological differences between males and females, asking if testosterone production in males was the only biological advantage afforded them, since the transgender advocates argued that the use of hormone and puberty blockers could potentially halt testosterone production in transgender-identifying biological males. “If we’re talking about six-year-olds, where there’s no difference between boys and girls in terms of athletic ability, testosterone levels, etc. could you have … sex-separated teams by biological sex and not allow trans girls on them?” She continued, “There are other … kind of genetic hard-wired differences maybe in size, etc. that don’t have to do with circulating testosterone.”

Justice Brett Kavanaugh asked how many states allow biological males to compete in female sports and whether or not the Equal Protection Clause would impose laws similar to Idaho’s on states who do allow the practice. “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?”

Changing course, he noted, “One of the great successes in America over the last 50 years has been the growth of women and girls’ sports, and it’s inspiring.” He observed that several individual states, the federal government under President Donald Trump, and organizations such as the National Collegiate Athletic Association (NCAA) and the Olympic Committee “study” how biological differences between men and women impact competition and fairness in sports and have largely concluded “that allowing transgender women and girls to participate will undermine or reverse that amazing success and will, you know, create unfairness.” He continued, “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.”

Justice Neil Gorsuch was the only Republican-appointed justice who seemed hesitant to embrace Idaho’s arguments, suggesting that the use of hormone and puberty blockers may be adequate to eliminate biological advantages for transgender-identifying biological males and questioning whether Idaho’s scientific fact-finding was thorough enough to warrant barring an entire class of persons (transgender-identifying biological males) from participating in female sports.

In West Virginia v. BPJ, the justices took a similar approach as in Little v. Hecox, again seeking the definition of such terms as “sex,” “transgender,” “man,” and “woman” in law. “The question here is whether or not a sex-based classification is necessarily a transgender classification,” Roberts clarified. “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?” he asked Joshua Block, who was representing the transgender advocates in the case. Block averred, “We’re 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…”

Alito took up Roberts’ line of questioning. “Title IX prohibits discrimination on the basis of sex. It’s a statutory term. It must mean something,” he insisted. “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? I mean, 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,” he continued. “How can we decide that without knowing what the statutory term means?”

As in Little v. Hecox, Democrat-appointed Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson indicated that they would likely side with the transgender advocates, eyeing effects-based analysis and disputing scientific fact-finding pertaining to biological differences and advantages. Gorsuch was once again the sole Republican-appointed justice who seemed to be on the fence, expressing concern that laws barring transgender-identifying biological males from participating in female sports may pave the way for further laws barring transgender-identifying individuals from participating in other programs and thus constituting state overreach.

Appearing on “Washington Watch” Tuesday night, Alliance Defending Freedom (ADF) Senior Counsel and Vice President for Litigation Jonathan Scruggs, who has been involved in both cases in support of the state laws, anticipated that the Supreme Court will uphold Idaho’s and West Virginia’s laws.

“The issue before the court was whether states can preserve women’s sports for women. And the answer to that question is obviously yes. Men shouldn’t be in women's sports,” Scruggs observed. He noted that when attorneys with the American Civil Liberties Union (ACLU) were asked to define sex, they could not provide a definition. “If you don’t know what sex is, how do you know what sex discrimination is? And so the ACLU’s argument effectively was erasing women from women’s sports,” Scruggs posited. “If you can’t define what a woman is, that means anyone can claim to be a woman and can attempt to go on a women’s sports team [and] go into women’s shower[s] or women’s locker room[s], and that means women and girls get harmed.”

“I think the justices were seeing through that fog and are going to hopefully side with the states of Idaho and West Virginia to protect women’s sports,” Scruggs suggested. “Justice Alito asked the question, ‘How do you define sex?’ That’s the key issue, because if you define it correctly, everything follows from that, and so if you answer the question like the ACLU did and say, ‘I can’t give you a definition,’ it is nonsensical. It doesn’t make any sense at all,” he added.

“Title IX is not just about sports, but it is about distinctions, and showers and locker rooms and things like that, and those matter,” Scruggs clarified. “The way to read Title IX is you essentially ask, ‘Does sex matter?’ And there are situations where everyone agrees it does, like in athletics, like in showers, like in locker rooms. Women should be protected in those situations. It’s okay to recognize real differences.”

There is no specific timeline for the Supreme Court to release its opinions in the various cases it hears, but the court has tended to publish its rulings in significant cases towards the end of its term, so a ruling in Little v. Hecox and West Virginia v. BPJ is likely to arrive by late June, although the justices may not publish a ruling until early July. The rulings in the dual cases will have significant implications for state laws shielding girls’ and young women’s sports and barring transgender-identifying biological boys and young men from competing against girls and women.