Supreme Court Justice's Simple Question Blows Gaping Hole in Transgender Athlete's Case

Supreme Court Justice Samuel Alito cut to the heart of the transgender sports debate Tuesday with a deceptively simple question—one that exposed the fundamental legal weakness behind efforts to force biological males into women’s athletics.

The high court heard oral arguments in challenges to laws enacted by Idaho and West Virginia requiring athletes to compete based on biological sex rather than self-declared gender identity. The cases hinge on whether such laws violate the Constitution’s Equal Protection Clause.

During questioning, Alito addressed Kathleen R. Hartnett, the attorney representing a self-described transgender Idaho student seeking to overturn the state’s law. He began by asking whether Hartnett agreed that schools may lawfully maintain separate sports teams for boys and girls without running afoul of equal protection principles.

Hartnett answered plainly: yes.

That concession set the trap.

Alito observed that if sex-separated teams are constitutional, the law must necessarily be able to define what a “boy” and a “girl” actually are. Hartnett agreed again—before the argument quickly unraveled.

Alito then posed the unavoidable question: “What is that definition for equal protection purposes?”

Hartnett immediately retreated.

“Sorry, I misunderstood your question,” she said, launching into a muddled response. “I think 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.”

She went on to admit, “We do not have a definition for the court… We’re not disputing the definition here.”

That admission left a glaring hole in her case. Hartnett was asking the Supreme Court to rule that her client—a biological male—must be treated as female for competitive sports purposes, while offering no legal definition of female that would justify such a conclusion.

Attempting to salvage the argument, Hartnett said, “What we’re saying is that the way it implies in practice is to exclude birth-sex males categorically from women’s teams, and that there is a subset of those birth-sex males where it doesn’t make sense to do so according to the state’s own interest.”

But that framing ignores the obvious. The state’s interest is clear: preserving fair competition and protecting the safety of female athletes—both of which depend on biological reality, not subjective identity.

Alito returned to first principles.

“How can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?” he asked.

Hartnett conceded that her client, as a “birth-sex male,” is barred from women’s teams under the statute.

“So, we’re taking the statute’s definitions as we find them, and we don’t dispute them,” she said. “We’re just trying to figure out, do they create an equal protection problem?”

That concession raised the obvious question: if the statute’s definitions are accepted, where exactly is the constitutional violation?

Alito pressed further, offering a hypothetical. Suppose a male student takes no puberty blockers, no hormones, and simply declares, “I am a woman. That’s who I am.”

“Can the school say, ‘No, you cannot participate?’” Alito asked.

“Yes,” Hartnett replied.

“Is that person not a woman in your understanding?” Alito followed up.

“I would respect their self-identity in addressing the person,” Hartnett said, “but in terms of the statute, I think the question is, ‘Does that person have a sex-based biological advantage?’”

That answer effectively conceded the point.

“What you seem to be saying is yes, it is permissible for the school to discriminate on the basis of transgender status,” Alito responded.

He then spelled out the logical conclusion: “If this person is a ‘trans woman,’ a ‘trans girl,’ and is barred from the girls’ team, then that person is being subjected to differential treatment based on transgender status, right?”

Exactly.

Alito’s line of questioning underscored what supporters of these lawsuits cannot escape: feelings and self-perception are not legal categories. Equal protection analysis cannot rest on internal states of mind, and the Constitution does not require states to abandon biological reality in order to satisfy ideological demands.

Once again, the Court was confronted with the same unresolved problem—one the left still refuses to answer: if sex no longer means biological sex, then it means nothing at all.