We will hear argument first this morning in Case 24-38, Little versus Hecox. Mr. Hurst. ORAL ARGUMENT OF ALAN M. HURST ON BEHALF OF THE PETITIONERS
“This is a purely procedural, administrative statement announcing the case and inviting counsel to begin oral argument. It contains no emotional valence or evaluative content whatsoever.”
Thank you, Mr. Chief Justice, and may it 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, 1 preserving women's equal opportunity. 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 the 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 percent of males, and a perfect fit is not required. If it were, that would be the end of all sex-based classifications. Finally, a word about mootness. When trying to avoid mootness below, Hecox told the court: I intend to play women's club soccer 1 this semester, next semester, and through the remainder of my time at B.S.U. 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.
There will probably be some questions about mootness, but I'd like you to, in focusing on the equal protection analysis, the -- and, here, the sex classifications in sports is not being challenged.
“The Justice is directing the argument toward specific legal issues (mootness and equal protection analysis) while clarifying what is and isn't at issue in the case. This is primarily procedural and agenda-setting, with elements of clarification about the scope of the argument.”
How does that work in this -- in this case, when we're talking about one individual being excepted from a particular -- or included in a particular category?
“The question 'How does that work' is a classic clarifying inquiry seeking to understand how a general principle applies to the specific facts of the case. The justice appears to be genuinely trying to understand the mechanics of the argument as applied to an individual being categorized, with mild skepticism embedded in the probe.”
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 1 review.
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 include -- excluded from a female sport, correct?
“The phrase 'That makes no sense to me' signals strong disagreement and hostility, while the follow-up question challenging the counsel's framing of sex classification reflects active skepticism. The closing question has a clarifying dimension but is embedded in a dismissive, confrontational tone.”
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 a -- 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?
“The Justice is actively probing the petitioner's argument by framing the constitutional framework (intermediate scrutiny for sex classifications) and then testing whether the argument fits within that framework. The 'correct?' at the end seeks confirmation of a characterization that may weaken or complicate the petitioner's position, combining clarifying intent with mild skepticism about how to categorize the claim.”
Yes, I think that is correct.
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 1 challenged on equal protection grounds their exclusion from a definition?
“The phrase 'how do you square' signals skepticism, challenging the petitioner to reconcile their argument with existing precedents. However, the Justice is also intellectually engaging by citing multiple specific cases, suggesting genuine exploration of the doctrinal tension rather than outright hostility.”
I'm happy to take those cases in order, Your Honor, starting with Caban. There was 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.
That's the point. That's what she's saying here, that the state interest here is the safety of women, correct, and promoting competitive -- competition?
“The Justice appears to be restating or confirming the opposing counsel's argument ('That's what she's saying here'), seeking confirmation from petitioner's counsel while clarifying the state's asserted interests. The phrase 'That's the point' suggests some alignment or acknowledgment, making this primarily clarifying with moderate engagement.”
That's the state interest.
In Caban, the state interest was in ensuring that only children with active parents, let's say, were given a state benefit, correct?
“The Justice is referencing precedent (Caban) to either clarify its holding or build toward a comparative point. The phrasing 'correct?' signals a genuine attempt to establish a shared factual/legal baseline before drawing a distinction or analogy, making this primarily clarifying with some intellectual engagement.”
Yes. And Caban was a -- was struck down facially. The statute was considered unjustified.
She's not -- how about Lehr?
“The Justice appears to be redirecting the discussion mid-thought, possibly correcting a factual point and pivoting to a specific case (Lehr). This is primarily a clarifying/engaging gesture, probing whether a particular precedent applies.”
In Lehr, we had the same -- we had --
That's the opposite. That's the subclass, the people who were excluded.
“The Justice is directly correcting the counsel's characterization, indicating the counsel has it backwards ('That's the opposite'), which signals skepticism and mild hostility toward the argument. The correction about the subclass suggests the Justice finds the counsel's framing inaccurate or misleading.”
In Lehr, the Court said the law would be justified with respect to you, you know, plaintiff, and because the law would be justified with respect to you, you are not able to challenge the law elsewhere.
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.
“The phrase 'That distinction doesn't make any sense to me' signals strong disagreement and dismissiveness, characteristic of hostility, while the subsequent reasoning challenges the logical coherence of counsel's argument, reflecting skepticism. The reference to prior precedent ('That's what we said') reinforces the dismissive rejection of the distinction being drawn.”
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, 1 equal opportunity for women requires giving women separate spaces. And VMI said that was okay. VMI said separate housing --
Wait a minute. That -- 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.
“The Justice sharply interrupts with 'Wait a minute' and directly accuses counsel of 'begging the very question at issue,' signaling strong disagreement and challenging the logical foundation of the argument. The tone is both hostile (interruption, accusatory framing) and skeptical (probing the reasoning behind the legal standard being advanced).”
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 women's sports.
Oh, but there is --
“This very brief interjection ('Oh, but there is --') appears to be an interruption suggesting the Justice is about to introduce a counter-point or correction, but without more context it's difficult to classify precisely. The 'Oh' suggests mild surprise or discovery, while 'but there is' indicates a rebuttal is forming, distributing probability across clarifying, engagement, and neutral categories.”
-- a dispute of that.
“This appears to be a sentence fragment, likely the tail end of a statement or interruption mid-argument. Without more context, the phrase '-- a dispute of that' carries no discernible emotional valence, making neutral the dominant classification.”
Are you then saying, Mr. Hurst, that there really is no such thing 1 as an as-applied equal protection challenge?
“The question challenges the logical implication of counsel's argument by suggesting it leads to an extreme conclusion (no as-applied equal protection challenges), which is a classic skeptical probe. However, it retains some clarifying intent as the Justice may be genuinely seeking to understand whether counsel's position truly extends that far.”
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.
But that sounds to me as though -- and, you know, I think our -- our precedent is -- is actually very sparse in this area, sort of surprisingly sparse. But it sounds to me as what you're saying is, as long as the -- 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're saying that that really is just not an available argument.
“The Justice is probing the logical implications of the petitioner's argument by restating it in stark terms ('that really is just not an available argument'), signaling skepticism about a position that would categorically bar subclass challenges. The restatement also has a clarifying dimension as the Justice seeks to pin down exactly what the counsel is arguing.”
I -- 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, 1 the -- the petitioner had been raised in the United States by the U.S. 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, it -- this Petitioner obviously had the connection with the United States. There was no basis to apply these justifications to that petitioner, didn't matter.
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, you know, and -- and -- and some of your briefing addresses that question, right? 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. Another thing that this litigation could be about is this deeper and, as I say, 1 surprisingly unanswered in my mind equal protection question about what -- what -- what an as-applied equal protection challenge is and whether they exist. And I -- I guess, you know, you're 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?
“The Justice is intellectually exploring two distinct analytical frameworks for the case while expressing genuine confusion about counsel's litigation strategy ('I don't really know what you're suggesting'), blending engaged exploration of the legal issues with clarifying questions about how the case should be decided and some mild skepticism about the coherence of petitioner's briefing.”
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, the -- this Court has never held, Nguyen said, that a law has to be capable of achieving its ultimate objective in 1 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.
-- can -- can I -- 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 1 same and you're not -- 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.
“The Justice is directly challenging the petitioner's premise about how to define the classification at issue in an equal protection analysis, probing a potential weakness in the argument. The reference to Caban and Lehr as supporting an as-applied challenge framework signals skepticism toward the petitioner's framing, while the structured, multi-part questioning also reflects genuine intellectual engagement with the legal theory.”
Certainly. The -- the -- I'll take the second question first.
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 intermediate scrutiny.
No, I understand. But those two cases --
“The 'No, I understand. But—' construction is a classic interruption pattern, cutting off counsel mid-thought to redirect or challenge, suggesting mild hostility or impatience. The 'But' signals pushback on the preceding argument, likely referencing two cases the Justice wants to distinguish or confront counsel with.”
-- were in juxtaposition with one another.
“This appears to be a fragment of a larger sentence, likely mid-thought, describing a textual or conceptual relationship between elements. The language suggests the Justice is either clarifying a point about the structure of an argument or statute, or actively engaging in analysis, with no strong emotional valence detectable.”
And Lehr comes out 1 the way it does distinguishing Caban on the basis that it's an as-applied challenge. And we in Lehr have a facial challenge. And it's basically the same facts. So, if those -- if you're right, that -- those two cases can't come out the way they do.
“The Justice is directly challenging the petitioner's argument by pointing out an apparent logical inconsistency between Caban and Lehr, suggesting that if the petitioner's position were correct, those two cases couldn't have been decided the way they were. This is a classic skeptical move of using precedent to undermine counsel's argument.”
Our -- 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.
There's another way to think about the case that your friends on the other side posit, and that is that transgender status should be conceived of as a discrete and insular class subject to scrutiny, heightened scrutiny, in and of itself given the history of de jure discrimination against 1 transgender individuals in this country over history in immigration and family law, cross-dressing statutes, they get a long laundry list. And I'd like you to respond to that.
“The Justice is presenting an alternative legal framework from the opposing side and asking counsel to respond to it, showing intellectual curiosity and genuine engagement with the competing legal theories. The tone is exploratory and even-handed rather than adversarial, inviting the petitioner to address a specific argument rather than challenging them with skepticism.”
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 Skrmetti is helpful to 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 1 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.
Okay. You -- you -- there are two things in that answer that are kind of at odds with one another. You -- you start by saying you don't question that there's a history of discrimination, I assume de jure, in this country.
“The Justice is pointing out an apparent internal contradiction in counsel's answer ('two things that are kind of at odds with one another'), which signals skepticism about the coherence of the argument, while also seeking clarification about what exactly counsel conceded regarding the history of discrimination.”
And then you say, well, but they don't classify on that basis. How should we think about that?
“The Justice is summarizing the opposing argument and then genuinely asking how the counsel wants the Court to think about it, which is primarily clarifying in nature. There's a mild skeptical undertone in the 'well, but' framing, suggesting the Justice is probing how to reconcile a potential counterargument.”
The -- I think that the -- the, you know, famous Footnote 4 helps, right? This has 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 1 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, you know, 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.
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 -- you -- in 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.
“The Justice is directly challenging counsel's prior assertion that there was 'no evidence' of discriminatory intent by pointing to specific legislative history where bill sponsors called it a 'transgender bar.' This is a pointed probing of a weakness in counsel's argument, signaling skepticism toward their position while also seeking clarification on how counsel reconciles this contradiction.”
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. 1 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 -- in that section of the transcript.
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 1 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?
“The Justice is strongly pressing the petitioner's counsel on the mootness issue, drawing a detailed analogy to Acheson Hotel and marshaling facts (the affidavit, imminent graduation, loss of competitive edge) to challenge the case's justiciability. The pointed rhetorical question 'How is that different?' signals skepticism toward the petitioner's ability to maintain the case is live, suggesting the Justice may be leaning toward finding the case moot.”
I -- I add one further difference between the two cases.
“The Justice is interjecting to add a distinguishing point between two cases, which is intellectually engaged behavior typical of active judicial participation. The phrasing is procedural and analytical without clear emotional valence, splitting between neutral procedural commentary and engaged exploration of legal distinctions.”
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.
“The Justice appears to be defending or supporting the respondent's position by arguing there is no subterfuge in avoiding the legal question, since the same issue will arise in another case. This carries an approving or validating tone toward the respondent's approach, while also being somewhat procedural/neutral in framing the Court's own process.”
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 1 also, the court feels that this is somewhat manipulative in order to escape the Supreme Court's jurisdiction. 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 maneuvers to moot the case, that isn't enough. This case isn't moot.
Thank you, counsel. Justice Thomas?
“This is a purely procedural statement — thanking counsel and yielding the floor to another Justice. It carries no emotional valence whatsoever and is entirely administrative in nature.”
Does a -- 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 1 tennis players. How is that different from what you're being required to do here?
“The Justice is using a hypothetical analogy (male athlete trying out for women's tennis) to probe whether the petitioner's situation is distinguishable from an accepted sex-based classification, suggesting skepticism about the argument's logic while also intellectually exploring the boundaries of the legal principle through engagement.”
It's not all different, Your Honor, and that's exactly what we're concerned about, that their arguments about needing to make exceptions from intermediate -- 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 -- related to a legitimate state interest? The person's reasons for wanting to violate the 1 classification don't come into the analysis.
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?
“The Justice is genuinely seeking to understand the relationship between two related cases, asking counsel to help clarify whether the issues are identical and what would remain undecided. The tone is exploratory and intellectually curious without any adversarial edge, combining clarifying intent with engaged exploration of the procedural and substantive overlap.”
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 would be bound by that decision going forward unless the Court reaches that question. That said, I would -- I would dispute the -- 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.
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.
“The Justice is correcting a mischaracterization of their question ('No, that wasn't the premise'), suggesting mild frustration, but primarily clarifying the intent of the question as exploratory rather than premised on a particular assumption. The 'Thank you' signals a procedural close to the exchange.”
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.
“The Justice is primarily seeking confirmation of the procedural posture—specifically how a Munsingwear GVR interacts with the current case and a related Ninth Circuit matter. The question is largely clarifying in nature, confirming that the analysis adopted in the Little case will govern the remanded proceedings, with some intellectual engagement in tracing the downstream consequences of the Court's decision.”
That is law, Your Honor, yes.
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 a distinction we saw. Here, she has said: I don't intend to 1 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 previous intent -- intents and only changed her mind when new circumstances arose, i.e., the notoriety of this case, correct?
“The Justice appears to be supporting the petitioner's position by distinguishing the Erie case and suggesting the respondent's characterization of misrepresentation is 'going a little extreme.' The framing actively defends the petitioner's credibility and honors her changed circumstances, signaling approval and engaged intellectual exploration of the argument rather than skepticism.”
No, Your Honor, nothing changed externally to -- 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.
Do you dispute that having a case named after you makes your infamy -- infamy live forever? Think of --
“The Justice is intellectually exploring the idea that having a case named after you immortalizes one's infamy, using a rhetorical question in a curious, exploratory manner rather than challenging or attacking counsel's argument. The tone suggests intellectual engagement and perhaps a gentle probing of an interesting tangential point.”
No? You don't think that Brown and any of the other named 1 plaintiffs that we have in famous cases draw an 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?
“The Justice's rhetorical questioning ('Have you studied your law cases?') and the pointed, somewhat dismissive challenge to counsel's apparent position signals both hostility and skepticism. The tone suggests the Justice finds counsel's argument unpersuasive or naive, using the example of Brown v. Board and named plaintiffs to challenge the claim that naming a case doesn't draw ongoing attention to the individuals involved.”
I don't doubt there will be attention. And I -- I confess I --
I -- and I confess I have studied a few law cases, but --
Have you studied the people?
“This very brief, open-ended question appears to be genuinely seeking information about whether counsel has empirical knowledge of the affected population. It reads as a clarifying or exploratory inquiry rather than a challenge, with some engagement as the Justice probes the factual basis of the argument.”
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 -- even Rule 41, even in just the district court, the rule is that once the 1 litigation hits a certain point --
-- what you're going -- assume, I know you don't want to, that you were to lose this case. You would -- you would say that we have to force an unwilling plaintiff who has offered to dismiss with prejudice, promised not to incur this activity again, we would force that person to continue prosecuting this case?
“The Justice is probing the logical consequences of the petitioner's position by presenting a hypothetical outcome ('assume you were to lose'), highlighting what appears to be an absurd or troubling result — forcing an unwilling plaintiff to continue litigation. This reflects both skepticism of the petitioner's argument and concern about the practical implications of ruling in their favor.”
The Court did in City of Erie.
That -- it did there, but is it the right thing to do? We didn't do it in Acheson.
“The Justice is challenging the counsel's reliance on precedent by questioning whether the approach taken in one case is actually the correct one, pointing to Acheson as a counterexample. This is classic skeptical probing of the argument's logical foundation, though with some intellectual engagement in testing the principle.”
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. This is a formidable burden that Hecox bears -- that's from Nike, Already v. Nike -- to show that it is absolutely clear that this 1 conduct cannot be reasonably expected to reoccur. We think, as the -- the district court said in its -- in its striking order, that based on the changing history here, based on the past conduct, as Scalia mentioned in his Footnote 3 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.
Mr. Hurst, I want to take you back to our conversation about whether there's such a thing as as-applied equal protection challenges and ask you for two things. The first is -- 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, like, bars to them in any 1 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 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 -- is just wrong, is off. And then the second thing I want you to do after you do that is -- 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.
“The Justice is clearly skeptical of the petitioner's position that as-applied equal protection challenges don't exist, marshaling constitutional principles (preference for as-applied challenges, individualized treatment in equal protection) to challenge counsel's argument. While structured as a question, the framing 'is just wrong, is off' reveals the Justice's own tentative view that the bar on as-applied challenges is incorrect, making this primarily skeptical with elements of clarification as the Justice also asks counsel to explain how such a challenge would work in practice.”
Certainly, Your Honor. The -- the first answer would be I -- I recognize those principles that -- that Your Honor is alluding to. The -- 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 -- supporting legislation, then it is always possible to find people whom it doesn't fit, and then we're in strict scrutiny.
So I completely take 1 that point --
“The phrase 'I completely take that point' signals clear agreement and acceptance of the argument being made, indicating strong approval. The fragment nature of the utterance suggests it may be mid-sentence, but the core sentiment is affirmative.”
-- Mr. Hurst. I mean, you're exactly right. And, of course, intermediate scrutiny is different from strict scrutiny. It doesn't require the, you know, almost perfection that strict scrutiny does. Completely take the point. But isn't that point really addressed to what we often consider in these areas, which is to facial challenges, right? So, when you bring a facial challenge, of course, that's right, that you're allowed to have over-inclusiveness and under-inclusiveness and a lack of a perfect fit, but that the nature of an as-applied challenge is different.
“The Justice begins with notable approval ('you're exactly right,' 'completely take the point') before pivoting to a skeptical challenge distinguishing facial challenges from as-applied challenges, suggesting counsel's argument about intermediate scrutiny's flexibility may not apply in this as-applied context. The combination of initial agreement followed by a probing 'but isn't that...' redirection signals substantive skepticism despite the collegial tone.”
Certainly, the Court could do that, Your Honor. The Court has not done that before, as -- as I think we both agree. And the -- the result of that would be judge-made exceptions to laws anytime judges thought they didn't make sense for particular classes of plaintiffs. And the deference to the legislature that should exist to some degree even under intermediate scrutiny 1 would -- would be done -- 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.
So -- so you're suggesting to me that the whole thing is just unworkable and we shouldn't -- but flip to my -- the second prong of my question, which is suppose we said, yeah, we're -- as-applied equal protection challenges exist as as-applied anything challenges do. What would it look like, do you think? What should it look like?
“The Justice is actively exploring a hypothetical scenario, redirecting the conversation to probe what an as-applied equal protection challenge would look like in practice. The phrasing 'flip to my second prong' and 'what would it look like, do you think?' reflects intellectual curiosity and engaged exploration rather than hostility or strong skepticism, though there's a slight skeptical undertone in summarizing counsel's position as 'unworkable.'”
Yeah. I'm -- I'm not sure what it should look like. I can say what it 1 does look like in this case and -- and why we think there's a problem with it.
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.
“The Justice is noting that counsel is avoiding or rejecting an alternative analytical framework ('second path'), which carries mild skepticism about counsel's unwillingness to engage with the hypothetical. The phrasing 'let's assume' signals intellectual engagement and an attempt to explore a counterfactual, but the observation that counsel won't 'take me on' this path suggests some frustration or probing of the argument's limits.”
How should we view it?
“This brief, open-ended question is primarily a genuine request for guidance or framing, indicating the Justice wants counsel to explain their interpretive framework. It carries elements of intellectual engagement as well, inviting the advocate to lead the analysis.”
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.
Yeah. I mean, that doesn't seem like much of an as-applied challenge, right? You have to prove the exact same thing as you do in a facial challenge.
“The Justice is directly challenging the characterization of the claim as an 'as-applied' challenge, suggesting it collapses into a facial challenge — a skeptical probe of the petitioner's legal framing. The 'right?' tag question and 'doesn't seem like much' language signal doubt about the argument's validity, though the tone remains intellectually engaged rather than hostile.”
But don't worry because you only get relief as to you. So that's -- that's not a true as-applied 1 challenge.
“The Justice is probing a weakness in the petitioner's argument by pointing out an internal inconsistency — suggesting that claiming relief only as to themselves undermines their assertion that this is a true as-applied challenge. The sarcastic 'but don't worry' framing signals mild skepticism bordering on dismissiveness.”
And this is -- I'm having trouble coming up with what it could look like because it will always be possible to carve the class down further, right? 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 percent 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 -- you know, like, able to achieve ordinary levels of testosterone for women. And the other three quarters would still have an advantage and, therefore, we'd be justified, 75 percent, pretty good fit under intermediate scrutiny, and we'd be justified with the law. 1 But then they can just change the class again and they can say: A-ha, 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 -- if you can define the class so precisely, you're going to force the state to -- you know, to define the class that precisely. It's going to be enormously burdensome for everyone. And the state can't ever 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.
Justice Gorsuch? Justice Kavanaugh?
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 1 in women's and girls' sports?
“The Justice is engaging in intellectual exploration by posing a sharper hypothetical that distinguishes the explicit statutory language from the current case, building on a prior exchange to probe whether the constitutional analysis changes depending on how directly the law targets transgender individuals. This is a mix of engagement and clarifying, with some skepticism aimed at testing the boundaries of counsel's constitutional position.”
My -- my answer to that depends on what's in the rest of the law. So I -- 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.
If the law either expressly or through its effect let all males except 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 --
No, assume that the -- assume that the law does not allow males to play in women's and girls' sports --
“The Justice is setting up a hypothetical scenario by asking counsel to 'assume' a particular legal framework, which is characteristic of intellectual engagement and hypothetical exploration. The 'No, assume that...' framing suggests the Justice is redirecting the discussion to probe a specific scenario rather than expressing hostility or skepticism.”
-- and then explicitly says in a separate provision transgender women and girls, biological males who identify as female, cannot play in women's and girls' sports. 1 Would your constitutional position be any different in that situation?
“The Justice is constructing a specific hypothetical scenario with explicit statutory language to test the boundaries of petitioner's constitutional argument. This is primarily intellectual engagement—probing whether the constitutional position would differ based on how explicitly a law targets transgender individuals—with some skepticism about the consistency of the argument.”
No, Your Honor. I -- 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 question.
Even if it says transgender?
“This very short, pointed question challenges whether the counsel's argument holds even in the specific case of transgender individuals, suggesting skepticism about the breadth of the claim while also seeking clarification about its limits.”
The word "transgender" in the statute might be relevant to a pretext analysis, but it wouldn't be relevant to the facial classification if that word did not change how the statute applied in practice.
How many states allow biological males who identify as females, transgender, women and girls, to play in women's and girls' sports?
“The question seeks factual information about state-level policies, suggesting a mix of clarifying intent and engagement with the issue. The framing ('biological males who identify as females') carries a slight skeptical or concerned tone about the broader policy implications, but the primary purpose appears to be gathering empirical data to contextualize the argument.”
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.
And those states who do allow it, are they -- is your position 1 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?
“The Justice is genuinely seeking to understand the scope and logical implications of the petitioner's position — specifically whether their argument mandates a constitutional violation in states that allow transgender participation, or whether it leaves room for state discretion. This is primarily a clarifying question, though it carries mild skepticism by probing the consistency and reach of the argument.”
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.
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 allow trans girls on 1 them?
“The Justice is probing the logical boundaries of petitioner's theory by constructing a hypothetical edge case (six-year-olds with no biological differences) to test whether the justification for sex-separated teams holds when the underlying rationale disappears. This combines skeptical probing of the argument's coherence with genuine intellectual engagement in exploring its implications.”
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 sports for six --
That's why it was a hypothetical.
“This brief remark appears to be a mild defensive or clarifying response, likely following up on a hypothetical the Justice posed. The tone is largely neutral/procedural, with light engagement as the Justice acknowledges the exploratory nature of their own hypothetical question.”
Okay. Right. Yes. Like, there would be the normal intermediate scrutiny analysis. And are we saying it applies only to six-year-olds or to everybody across the board?
Well, I'm just trying to give you a hypo -- I mean, yours --
“The Justice is in the process of constructing a hypothetical scenario for the counsel, which is a classic form of intellectual engagement and exploration. The self-correction mid-sentence ('I mean, yours --') suggests the Justice is actively working through the hypothetical in real time, indicating curious exploration rather than hostility or skepticism.”
-- 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 1 girls team in an age group that's prepubescent.
“The Justice is probing the logic of the petitioner's argument by isolating a specific variable (biological sex vs. testosterone/athletic capability) in a prepubescent context, suggesting skepticism about whether the policy justification holds in that scenario. The 'what if' framing indicates both intellectual engagement and a challenge to the argument's internal consistency.”
The record in this case does not support the notion that males lack an athletic advantage at six years old. That -- 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 percent 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.
And remind me whether Idaho's law -- and I guess this -- this -- your -- 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?
“The Justice is genuinely seeking clarification about a specific factual aspect of Idaho's law regarding trans boys playing on boys' teams, likely to probe whether the law discriminates based on trans status specifically or biological sex more broadly. The hesitant, self-correcting phrasing ('this -- this -- your -- your answer made me think of this') suggests genuine inquiry rather than a pointed challenge.”
Anyone can play on boys' teams, Your Honor.
Anyone can play on boys' teams, okay. And -- 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.
“The Justice appears to be probing the petitioner's argument about medical and scientific uncertainty regarding athletic advantages beyond testosterone levels, suggesting some skepticism about the scope of the claim. The phrase 'okay' after stating 'anyone can play on boys' teams' signals the Justice is testing or challenging a premise, while the follow-up about additional advantages beyond testosterone indicates scrutiny of the argument's evidentiary basis.”
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 is the state's burden in -- in -- 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 -- tell me how to think about that.
“The Justice is actively engaging with the petitioner by presenting the opposing side's argument and asking how to think through the scientific uncertainty and deference questions. The tone is intellectually exploratory and genuinely seeking a framework, with some clarifying elements about burden of proof, rather than hostile or purely skeptical.”
The -- the first question would be are we applying intermediate scrutiny, 1 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 -- a First Amendment 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.
So I guess I'm going back to your discussion with Justice Kagan. I -- I -- I'm 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 1 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 -- individual capacity because the state's general rule is based on fairness and -- and medical science and all of these things. Do I have this -- like, they're not proposing an alternative class necessarily. They are just saying that I don't -- I should be excepted from that general rule on this basis.
“The Justice is genuinely trying to work through and clarify their understanding of the as-applied challenge framework, questioning the petitioner's characterization while also probing the logical structure of the argument. The repeated 'I'm not sure I understand' and 'Do I have this right' signals a mix of genuine clarification-seeking and mild skepticism about how the counsel has framed the legal issue.”
We -- we agree that an exception is what they are seeking, Your Honor. And -- and it's an exception based on transgender status again.
But that's the way the rule used to work, right? Am I -- I just want to be clear about what we're talking about here.
“The Justice explicitly states 'I just want to be clear about what we're talking about here,' signaling a genuine attempt to establish a baseline understanding of how the rule previously operated. The mild 'right?' at the end adds a slight skeptical or confirmatory probe, but the dominant intent is clarification.”
I -- I understood that this law originally was exactly that, that you -- you basically said no transgender women in girls' sports, but we'll look at your 1 evidence and look at your circumstances and decide whether or not you individually can be included.
“The Justice is seeking to confirm their understanding of how the law originally operated, characterizing it as having an individual exception mechanism. This is primarily a clarifying statement aimed at verifying their comprehension of the law's structure, with some engagement as they explore the nuances of how the policy functioned in practice.”
Is that -- is that what used to happen?
“The question is a straightforward request for historical clarification, seeking to understand past practice. The repetition ('Is that -- is that') suggests genuine curiosity rather than challenge, making this primarily a clarifying inquiry with some intellectual engagement.”
As a matter of Idaho law, there was no law whatsoever before this. It was --
Is that what was happening on the ground in Idaho law?
“The question appears to be genuinely seeking factual clarification about the practical application of Idaho law on the ground, with mild skepticism as the Justice may be probing whether the petitioner's characterization matches reality.”
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.
But what I'm asking is, if that is the -- if 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're not going to be able to sustain? I don't understand that.
“The Justice is pressing the petitioner on why an individualized, as-applied approach wouldn't be administrable, signaling skepticism toward the petitioner's broad categorical arguments while also genuinely seeking clarification. The phrase 'I don't understand that' indicates both a challenge to the logic and a request for explanation.”
So, first -- first, as to administrability, Your Honor, making sure that a -- a transgender athlete does not lack an -- or does not have an unfair advantage would require ongoing testosterone monitoring because their testosterone can fluctuate. That is invasive, that is intrusive, and that's expensive.
No, but that's the burden of the person. The person who wants to play has to demonstrate to you to whatever degree of scientific certainty that they don't have a competitive advantage. Why -- why would you not allow that? I guess I don't understand.
“The Justice is pushing back on the petitioner's position by suggesting an alternative framework (placing the burden on the individual to prove no competitive advantage), while also expressing genuine puzzlement with 'I guess I don't understand.' This combines skepticism of counsel's argument with an element of seeking clarification for why the alternative approach wouldn't work.”
The -- the second answer is that -- 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 other different -- for different reasons that they don't have an unfair advantage and, therefore, they could compete safely.
I -- I -- I understand that. And there are -- 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?
“The Justice expresses direct doubt about the petitioner's classification argument, using 'I'm struggling to understand' and a pointed rhetorical question that challenges the logical consistency of the position. While it has elements of genuine clarification-seeking, the framing strongly signals skepticism toward the argument being made.”
I'd apply Skrmetti again. The question is whether the application of law turns on transgender status. And it doesn't. It -- 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.
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 1 sex, right?
“The Justice is probing the logical implications of the petitioner's argument by drawing a direct comparison between a cis woman and a trans woman to highlight that the law treats them differently based on sex. The 'No, I understand, but...' framing signals skepticism toward the petitioner's position while also seeking to clarify the precise legal mechanism at work.”
The law does separate differently based on their sex, as Your Honor just said. It does not operate differently based on their transgender identity.
But it treats transgender women different than tran -- than -- than cis women, doesn't it?
“The question probes a potential inconsistency or discriminatory aspect of the petitioner's position by pointing out differential treatment between transgender women and cisgender women, suggesting skepticism about the fairness or legality of the policy. The 'doesn't it?' tag question signals the Justice is pushing back on the argument rather than genuinely seeking clarification, though some clarifying intent remains present.”
It -- it has a disparate impact because men who identify as -- as transgender have a different reason for wanting to play women's sports than -- than women -- you know, than biological females do, right? But, if that were enough, then Skrmetti would have come out a different way, Geduldig would have come out a different way, other cases would have gone a different way. I'm blanking on the other ones.
All 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 1 against -- 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?
“The Justice is raising a genuine procedural concern about mootness while also expressing some intellectual curiosity about the unusual posture of a defendant not wanting dismissal. The tone is probing and analytical rather than hostile, with elements of both concern about case viability and engagement with an interesting procedural puzzle.”
I don't think so, Your Honor. I'd look to Camreta as the case that tells us how we -- the best case for telling us how we -- how we analyze mootness in this situation. It's does the Petitioner still have an interest in continuing the litigation? And does the --
Only for a few more months. What -- what if -- what if this decision doesn't come out until June and she graduates in May? Isn't -- what --
“The Justice is probing a practical scenario about mootness—what happens if the student graduates before a decision is reached—which reflects both concern about the real-world consequences and active engagement with the hypothetical timeline. The fragmented, interrupted phrasing suggests genuine curiosity mixed with worry about the case becoming moot.”
It's -- 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.
For this individual, that's correct.
All right. Thank 1 you.
“This is a standard procedural closing remark used to conclude counsel's argument time, carrying no substantive emotional valence beyond basic courtesy.”
Thank you, counsel. Mr. Mooppan. ORAL ARGUMENT OF HASHIM M. MOOPPAN FOR THE UNITED STATES, AS AMICUS CURIAE SUPPORTING THE PETITIONERS
“This is a purely procedural utterance thanking prior counsel and introducing the next speaker. It contains no emotional valence or substantive legal content, making it almost entirely neutral in judicial sentiment.”
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 eliminate his sex-based physiological advantages. The law is reasonably tailored, regardless of whether it is perfectly tailored, 1 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 need not treat them the same. I welcome this Court's questions.
Would you -- 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.
“The Justice is genuinely seeking elaboration on a point the counsel raised, asking them to expand on their argument about state interests in individual cases. The framing 'Would you elaborate' and 'That seems to be what...would require' suggests the Justice is seeking clarification and testing their understanding of the argument, with mild intellectual engagement in exploring the implications of applied challenges.”
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? 1 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 a law that applied -- 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 it -- for math and chess, at the level of the classification, it's not reasonably tailored. But, here, critically, everyone agrees that for sports, for 99 percent of men, it's reasonably tailored. It's just the 1 percent of trans-identifying individuals who take drugs and then those drugs are effective that it's a problem. 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 1 women faced a unique risk of pregnancy. But, of course, if either the male rapist or the female victim was infertile, there would 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 -- for pre-pubescent girls. That's just not the way as-applied scrutiny works in intermediate scrutiny cases. 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 there -- the parent knew that they were the parent and had an opportunity to have a relationship with the parent. But Nguyen -- 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 reasonably tailored and they weren't going to focus on the specific 1 facts of Nguyen. You know --
You -- you started, Mr. Mooppan, by saying that you can -- 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, right? So -- 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 -- and focus instead on, like, real as-applied challenges. Your classification is basically okay, let's posit because it -- it -- it's -- 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 notwithstanding that there is no valid facial challenge here, there is an as-applied challenge, this subclass has to be exempted?
“The Justice is actively probing and challenging counsel's earlier characterization of as-applied challenges, pushing back on the chess team example as not truly being an as-applied challenge. The questioning reflects intellectual engagement while also expressing skepticism about the legal framework counsel proposed, seeking to refine and test the boundaries of the argument.”
So it's a hard -- I 1 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 1 and subgroup 2, each of whom were a third of men, it was reasonably tailored. But, for subgroup 3, 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 men.
But why does it have to be --
“This appears to be an interruption mid-sentence, which CourtCast research associates with hostility. The phrase 'But why does it have to be' signals challenge or disagreement with a preceding assertion, combining elements of skepticism and hostility, though the truncated nature makes full classification difficult.”
-- that many people? Why, why? I don't understand why that subclass can't make this showing and get the remedy as to them.
“The Justice is directly challenging the petitioner's argument about why a subclass cannot make a particular showing, expressing genuine confusion and skepticism with repeated 'why' questions. The 'I don't understand why' phrasing blends clarifying intent with underlying skepticism toward the petitioner's position.”
Because, if it's one person, you're basically converting the law into strict scrutiny.
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.
“The Justice is pushing back on the petitioner's argument by invoking prior precedent (CASA) to challenge the scope of the remedy being sought, suggesting the individual cannot receive broader relief that flows to everyone. The repetition ('you're not, you're not') signals skepticism and mild frustration with the argument being made, probing its consistency with established doctrine.”
So, again, because, if the law is reasonably tailored for 99.99999 percent of people and you come up with a point fraction of percent and say that that percent has a viable claim, that's -- that's more than you would ever require under strict scrutiny. I don't know of any claims that's ever done that.
No, but, I mean, 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 1 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 percent of the other people?
“The Justice is genuinely trying to understand the logical distinction between facial and as-applied challenges, using 'I guess I don't understand why it matters' to probe the petitioner's argument. This reflects a mix of clarification-seeking and intellectual engagement, with mild skepticism about the practical implications of the facial challenge framework being argued.”
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 state -- sex only need to be reasonably related. And so, if it's reasonably related because it's tailored for 99 percent of people, then it is constitutional even applied to you.
So you are saying there is no such thing as an as-applied intermediate scrutiny challenge.
“The Justice is restating the counsel's position in a pointed, probing way that suggests disbelief or doubt about such a sweeping legal claim, while also seeking clarification to confirm whether counsel truly intends to make such a broad argument. The phrasing 'you are saying there is no such thing' signals skepticism about the absoluteness of the claimed position.”
I'm saying -- no, again, if you -- if there was one where it was a third of the people, I could 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. 1 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 --
No, I understand. But we didn't do that same kind of quantitative analysis in Caban, right?
“The Justice acknowledges the counsel's point ('No, I understand') but then probes a potential inconsistency with the Caban precedent, suggesting mild skepticism about whether the current argument aligns with prior case methodology. The question is partly clarifying, seeking to confirm a factual distinction, but the rhetorical 'right?' implies the Justice may already know the answer and is testing the argument's consistency.”
We didn't ask the -- the -- the -- the husband in Caban to figure out where he stood relative to all husbands who -- who --
“The Justice is drawing a comparison to precedent (Caban) to challenge or probe the petitioner's argument, suggesting skepticism about requiring a particular showing from the party. The repetitive stuttering indicates the Justice is working through the analogy in real time, reflecting intellectual engagement alongside a skeptical challenge to the legal standard being proposed.”
-- who were -- to whom this was applied.
“This appears to be a sentence fragment or mid-thought completion, likely the Justice clarifying or specifying the subject of a prior question. The dashes indicate it is part of a larger interrupted or trailing statement, suggesting a clarifying or procedural interjection with no strong emotional valence.”
Right. So, yeah, let me talk about both Caban and Lehr.
So Caban is not an as-applied challenge. Caban did not say that there was some set of people for whom that law was valid, the differential treatment on the basis --
Itself. Lehr said 1 that about Caban.
“This very brief, fragmented utterance appears to be a reference to prior case law (Lehr v. Robertson and Caban), likely mid-discussion, suggesting the Justice is clarifying or noting a specific point from precedent. The terse, incomplete nature suggests a procedural or clarifying interjection rather than strong sentiment.”
Right, right. But -- so Lehr -- what Lehr held was the father in Lehr had abandoned the child, and what Lehr essentially said is, if the mother had abandoned the child, the mother wouldn't get a veto either.
Can I -- can I read to you what Lehr said about Kahn? Discussing Caban, Lehr 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 Lehr is interpreting Caban as an as-applied challenge, isolating a subset of people where there's not actual similarly situated circumstances, and Lehr is different. It -- it is a facial challenge. It --
“The Justice is reading from precedent to challenge or probe the counsel's interpretation of case law, suggesting skepticism about how the counsel has characterized Caban and Lehr. The act of citing specific language from Lehr to contrast with the argument being made signals an intent to test the logical consistency of counsel's position, though there is also an element of intellectual engagement in working through the doctrinal distinctions.”
-- is in opposition. No?
“The fragment '-- is in opposition. No?' suggests the Justice is either challenging a characterization or seeking confirmation about whether something is in opposition, with the 'No?' indicating a mild probing or checking quality. The truncated nature makes it ambiguous between clarifying and skeptical intent.”
What that sentence in Lehr -- the facts of Lehr, there was no 1 differential treatment. The father in Lehr had abandoned the child and the Court basically rejected his claim because, if the mother had abandoned the child, the mother also wouldn't get a veto. So Lehr is 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 Lehr 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 Lehr 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.
Counsel, I -- I --
“The stuttered interruption 'I -- I --' suggests the Justice is cutting off counsel mid-argument, which research associates with hostility or at minimum an urgent need to interject. However, the extreme brevity and incomplete nature of the utterance makes it largely neutral procedurally, with some hostility signal from the interruption pattern.”
You had also asked about VMI, so let -- if I could just briefly address why VMI doesn't support them either. In VMI, the point was yes, lots of 1 women couldn't -- 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 VMI was -- 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.
Thank you, counsel. Justice Thomas? Justice Alito?
“This is a purely procedural utterance with no emotional valence, consisting of a standard acknowledgment of counsel and polling of other justices for questions. It carries no substantive judicial sentiment whatsoever.”
Under Title IX, what does the term "sex" mean?
“This is a foundational definitional question seeking to establish the meaning of a key statutory term, indicating the Justice wants to clarify the legal basis of petitioner's argument. It is primarily clarifying with some engagement, as it also invites intellectual exploration of how the term should be interpreted.”
We think it's properly 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.
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 Lehr. He wanted to do exactly what you said. He said, in dissent, this Court should be -- should be analyzing equal protection, 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 require a challenger to demonstrate that its 1 unjust applications are sufficiently numerous and serious to render it invalid. It's exactly what you said we should be doing. So you want us to accept what the dissent did and not what the majority said it was doing in Caban or Majure. 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 could satisfy the -- 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, but -- 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?
“The Justice is strongly challenging counsel's argument by pointing out that the approach advocated mirrors dissenting opinions that were rejected by majority holdings in multiple cases (Caban, Lehr, VMI). The extended recitation of precedent, the rhetorical conclusion 'correct?', and the pointed observation that counsel is asking the Court to adopt minority dissenting views all signal deep skepticism. There is some engagement in the intellectual exploration of the doctrinal history, and a touch of wry humor ('you're smiling because it's true'), but the dominant tone is one of probing doubt about the validity of the argument.”
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 men, but it's 1 not reasonable --
Oh, but it exact -- it did exactly. It said it's reasonable for -- it's reasonable for fathers who -- who don't support their children and won't be reasonable for fathers who don't.
“The 'Oh, but it exact--it did exactly' opening signals a direct rebuttal or correction of counsel's prior statement, indicating skepticism or mild pushback. The Justice appears to be pointing out that the statute or precedent already addressed the point counsel was making, challenging the argument's premise.”
With all respect, Your Honor, it did not. Caban did not uphold that law as applied to any men who hadn't abandoned their child. Now it is true Lehr upheld the law for someone who had abandoned their child, but the reason it upheld the law is because --
But the logic of --
“The truncated phrase 'But the logic of --' strongly suggests an interruption mid-sentence, which research associates with hostility or strong disagreement. The adversative 'But' signals pushback against the counsel's argument, and the incomplete nature indicates either a self-interruption to challenge the logic or an actual interruption of counsel, both pointing toward skepticism or hostility.”
-- women who abandoned their child --
-- but the logic of the -- of the opinion is that if the reverse had been true, it would have ruled the way it did.
“The Justice is probing the logical implications of a prior opinion, testing whether the reasoning holds consistently under a hypothetical reversal of facts. This is primarily skeptical — challenging the counsel's reliance on precedent — with some clarifying and engagement elements as the Justice works through the opinion's internal logic.”
I don't think that's true, but even if you thought that was --
Counsel, then I have --
“This is a very brief, procedural utterance that appears to be a Justice beginning to interject or transition to a new question. The phrase 'then I have --' suggests the Justice is about to pose a question or follow-up, with no discernible emotional valence, making it predominantly neutral.”
No, I -- 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 percent, 5 percent, 30 percent, 15 percent? One is not enough for you, but why?
“The Justice is pressing hard on the petitioner's argument about subclass size, challenging the logical consistency of drawing a line at 'one' while pointing to 2.8 million transgender people nationally. The rhetorical series of percentage questions ('Is it 1 percent, 5 percent...') signals skepticism about the petitioner's reasoning, though it also carries genuine clarifying intent about what standard the petitioner is applying.”
When the numbers, this -- the numbers don't talk about the human beings.
“The statement reflects deep concern about the dehumanizing nature of statistical or numerical arguments, suggesting the Justice is troubled by a disconnect between abstract numbers and the real human impact of the case at hand. This is a classic expression of judicial concern about consequences for real people.”
So I'll say a couple 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 percent surely has to be on the side that's reasonable. But, if you don't want to just take the 1 percent on its own face, I would 1 point the Court -- if you want to focus on majority opinions or opinions for the Court, Michael M rejected the challenge even though that law wouldn't, for an infertile couple, infertile, either infertile rapists or infertile victims, the justification didn't apply. There are certainly more infertile people --
But they did it -- they did it on a different basis, which had to do with different harms to a previous --
“The Justice appears to be pushing back on a point made by counsel by noting a distinction in the basis used, which combines clarification of the record with mild skepticism about whether the analogy or argument being made truly holds. The interruption-like quality ('But they did it') suggests some pushback but not strong hostility.”
No, that's not true, Your Honor. With all respect --
Well, I can read the decision and tell you.
“The dismissive, almost curt response ('I can read the decision and tell you') signals mild hostility and skepticism, suggesting the Justice is pushing back on counsel's interpretation or claim about the decision. The tone implies the Justice disagrees with how counsel is characterizing a case or legal text.”
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 1 this percentage is too small.
Mr. Mooppan, just assume with me that there is such a thing as an as-applied equal protection challenge. What would -- what would it take to bring that challenge? What should the plaintiff have to show?
“The Justice is inviting counsel to engage with a hypothetical legal framework ('just assume with me'), showing intellectual curiosity about how an as-applied equal protection challenge would work procedurally. This is a classic engagement move—exploring the logical contours of an argument without hostility or strong skepticism.”
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 them.
And they would have the burden on that? It's not -- it's not for the state to come back and say -- the state does not have to satisfy that burden initially?
“The Justice is seeking clarification about which party bears the burden of proof, questioning whether the petitioner's position correctly allocates that burden. The repeated reformulation ('It's not -- it's not') suggests the Justice is working through the argument carefully, with mild skepticism about whether the burden allocation as described is correct.”
I -- certainly not the first of the two. As 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. 1 So I think the state would have it on the second step. The plaintiff would have it on the first step.
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?
“The Justice appears to be paraphrasing and confirming their understanding of the petitioner's argument about a threshold requirement before state authority kicks in. The 'I see' opener and the reformulation of the argument suggests genuine clarification-seeking, though there's mild skepticism in the somewhat colloquial framing ('big enough for you to take us seriously') which subtly questions the logic of the position.”
I think -- I think that would be how you would analyze it.
Uh-huh. And -- and I think you were asked this, but big enough to be taken seriously, like, how do we decide that?
“The Justice is genuinely seeking clarification on how to operationalize the 'big enough to be taken seriously' standard, indicating a mix of clarifying intent and mild skepticism about the workability of the proposed test. The 'Uh-huh' acknowledgment suggests the question was previously raised, and the Justice is pressing for a more concrete answer.”
You know, 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 it -- we're not asking for perfection --
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.
“The Justice is probing whether counsel is blurring the distinction between facial and as-applied challenges, expressing skepticism with 'are you really undermining the difference between the two?' while also seeking clarification about the doctrinal framework the argument relies upon.”
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.
If the class is big enough, in your discussion, say, a third, as you discussed, might it just fail intermediate scrutiny facially? I mean, at some point, do 1 they collapse?
“The Justice is probing whether the petitioner's own framing (a large class) might undermine their as-applied challenge by collapsing it into a facial challenge failing intermediate scrutiny. The questioning tests the logical limits of the argument with some skepticism, while also showing genuine intellectual engagement with the doctrinal line between as-applied and facial challenges.”
So I -- I -- I -- I agree that that's part of why these are so unusual. If there's a big enough group that you've excluded, you -- you're exactly right, it -- 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 it covers enough -- a big enough group that it -- it can't be justified for, then maybe you could bring an as-applied claim. I -- 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 a percent. That would be totally inconsistent with this Court's decision in Michael M. and Nguyen, both of which rejected claims by people who had a much greater percentage than a fraction of a percent.
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?
“The Justice is seeking clarification on the petitioner's position regarding other states' policies and their constitutional validity under the Equal Protection Clause. While there is some probing quality that could indicate skepticism, the question is primarily aimed at pinning down the scope of the petitioner's legal argument — whether they concede that other states may permissibly allow transgender athletes to compete, which is a clarifying and intellectually engaging inquiry.”
We have 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 judgment on --
Can you answer the Equal Protection Clause question that I just asked?
“The phrase 'that I just asked' signals the counsel has not answered or has evaded a prior question, which carries an implicit rebuke. This direct redirection to an unanswered question indicates mild hostility or frustration while still seeking substantive clarification on the Equal Protection issue.”
I believe -- you know, I'm not sure if we've taken a position on the equal protection piece.
Do you have a position?
“This is a very brief, procedural question asking counsel to state their position. It carries minimal emotional valence and is primarily neutral/clarifying in nature, simply inviting counsel to articulate their stance on an issue.”
I -- I don't right now. I'm sorry.
Okay. And on Title IX, Footnote 2 of your brief seemed to say that you don't have a position on how Title 1 IX applies to those states as well.
“The Justice is seeking clarification about the petitioner's stated position (or lack thereof) on how Title IX applies, referencing a specific footnote in the brief. This is a straightforward attempt to understand and confirm the scope of the party's argument rather than challenging it.”
No. So we do have -- 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, and 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.
Okay. So you have a position on it, but you don't want us to say anything about that --
“The Justice is attempting to pin down and clarify the counsel's precise position — noting that counsel holds a view but apparently wants to limit the Court's ruling on it. This is primarily a clarifying probe to better understand the scope and nature of the argument being presented.”
It's a very different question analytically, and so we --
I understand. That's why I'm asking.
“The phrase 'That's why I'm asking' directly signals the Justice is seeking clarification or elaboration on a point already acknowledged, indicating a genuine information-gathering intent rather than challenge or hostility.”
So, Mr. Mooppan, when Justice Kagan started asking the questions early on about the as-applied equal protection 1 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 Lehr and, you know, 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 in fact -- or typically or 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 -- in any case in which scrutiny is not talking about a perfect fit, you might have this problem. 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 1 said because all lines, all classifications overshoot or undershoot, right? So can you imagine how intermediate scrutiny works? And this is -- I'm not -- I'm not -- this isn't designed to be a lay-up or something. It's honestly just something I'm -- I'm grappling with. How would it even work going forward?
“The Justice explicitly signals genuine intellectual exploration ('I'm honestly just grappling with this'), acknowledging uncertainty in the doctrine while working through the theoretical ramifications of as-applied equal protection challenges. The tone is deeply analytical and curious rather than adversarial, with some concern about how intermediate scrutiny would function going forward if as-applied challenges were permitted.”
Yeah. 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 --
-- and 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 an as-applied claim. And so the state will essentially have to have perfectly tailored 1 laws because any single person who -- for whom you don't have a perfect fit could come in and bring an as-applied challenge.
Including, say, you know, 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.
“The Justice is exploring a hypothetical scenario about boys who aren't skilled enough for the male team competing on a girls' team, probing the limits and logic of the petitioner's argument about competitive fairness and safety. This reflects intellectual engagement and some skepticism about how the law's rationale applies consistently across different scenarios.”
At least arguably, depending on what their exact theory is for --
I guess 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.
“The Justice signals skepticism toward the petitioner's apparent argument that laws must be 'perfectly tailored,' suggesting instead a lower standard requiring only individualized exceptions. The phrase 'I'm still struggling to understand' indicates ongoing doubt about the petitioner's framing, while also genuinely seeking clarification on why their standard is necessary.”
Right. So making exceptions is tailoring your law. That's literally what it means, to tailor your law --
Yes from the standpoint of a facial challenge when we're asking because whether this law has to be stricken completely because it isn't, you know, 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're 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.
“The Justice is working through the logical implications of the petitioner's argument about facial vs. as-applied challenges, both clarifying the distinction and probing the potential gap in remedies available to individuals harmed by an overbroad law. The final sentence signals skepticism about the position that individuals get 'no remedy' unless they meet an overbreadth threshold.”
And I don't understand why that is. Why wouldn't -- when we identify people for whom this law operates 1 unconstitutionally -- that's the premise because now I'm in remedy, right? The premise is that you have a person who 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.
“The Justice repeatedly states 'I don't understand why' while articulating a logical contradiction in the respondent's position—that a successful as-applied challenger must still prove broader unconstitutionality for a remedy. This reflects strong skepticism toward the legal standard being advanced, with some concern about its implications for individuals who win as-applied challenges but are denied relief.”
Because I don't agree with the premise that the -- the law operates unconstitutionally as to an individual person just because it doesn't -- 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 forth for the law might not be true for each and every person the law applied to, but this Court said that's fine because --
And if we read Caban and Lehr to say something different, if I disagree with you, then -- then we just --
“The Justice is probing what happens if the precedents (Caban and Lehr) are read differently than the petitioner argues, signaling some skepticism about the counsel's interpretation of those cases. The trailing 'then we just --' suggests the Justice is working through the logical consequences of disagreeing, which reflects a mix of skepticism and intellectual engagement rather than outright hostility.”
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, but Nguyen explicitly says that we recognize that there are some men who are present at the birth of their child, who have a DNA test to prove that they're the father, that have been with their kids their entire life --
In fact, that was probably true of Nguyen's father. Tough luck.
-- 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 1 establishing an as-applied challenge. So, at the end of the day, is your position that, you know, 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 in -- anymore?
“The Justice expresses strong concern about the implications of restricting as-applied challenges, framing it as a troubling consequence ('I am worried about the implications of not'). The rhetorical question at the end also carries skepticism toward the respondent's position, probing whether their argument would eliminate meaningful individual remedies.”
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 that it's unconstitutional but there's no remedy. The point is that it is constitutional even though it's overbroad.
I don't necessarily think that's the take-away. I think what that means is it's okay because we realize that in some circumstances, maybe even in many 1 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.
“The Justice is pushing back on the petitioner's interpretation ('I don't necessarily think that's the take-away'), showing skepticism toward their argument, while simultaneously engaging intellectually with the legal question of when an as-applied challenge is permissible. The tone is probing and analytical rather than hostile, combining skepticism of the specific argument with genuine intellectual engagement about the broader principle.”
Well, I can't say anything better than, in both Michael M and Nguyen, the Court recognized that there were people who it wasn't tailored for.
They didn't give them a remedy.
Thank you, counsel. Ms. Hartnett. ORAL ARGUMENT OF KATHLEEN R. HARTNETT ON BEHALF OF THE RESPONDENTS
“This is a purely procedural utterance transitioning between counsel arguments, with a standard 'Thank you' and introduction of the next advocate. No emotional valence or substantive judicial engagement is present.”
Mr. Chief Justice, and may it please the Court: Idaho concedes that H.B. 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 1 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." That means H.B. 500 is aimed at controlling for sex-based biological advantages, not for all 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 H.B. 500 sought to address. And on this record, Lindsay Hecox has mitigated that advantage because she has suppressed her testosterone for over a year and taken estrogen. H.B. 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. That analysis would come out the other way for the untalented cisgender boy. He would have 1 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. Because the Court can affirm based on sex discrimination, it's not necessary to reach the question of transgender status discrimination, but H.B. 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.
Couldn't you make a similar argument with respect to Title IX itself and the sex difference, the -- the -- the fact that you can have male and female sports?
“The Justice is drawing an analogy to Title IX's sex-based distinctions to probe whether the respondent's argument proves too much or is inconsistent with established law. The 'Couldn't you make a similar argument' framing is a classic skeptical challenge testing the logical consistency of the respondent's position.”
No, Your Honor. So I think the point would be -- the question would be would the sex line that's drawn in --
-- sports, and that's a line that does exist, you know, as a commonplace line, is that substantially related to the important state interest particularly.
Well, you could have individuals who, for example, don't present the problem of physically out-matching women in a particular sport or a group of people who don't.
“The Justice is intellectually exploring a nuance in the argument by introducing a hypothetical category of individuals who don't present physical competitive advantages, suggesting there may be distinctions within the broader group being discussed. This is primarily exploratory engagement, though it carries some concern about the implications of a blanket rule.”
Right. And the broader -- 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 its own sake.
Well, I -- well, my 1 point is the argument that you're making now with respect to this subcategory, could it not also be made with respect to the sex separation in Title IX generally?
“The Justice is probing whether the respondent's argument for a subcategory extends more broadly to sex separation in Title IX generally, suggesting the logic may be overreaching or inconsistent. This is a classic skeptical challenge pointing to potential unintended consequences or logical extension of the argument.”
Occasionally, there have been examples of a -- of a boy challenging the separate teams because they want access to a team that's not available for the boys because of the way Title IX works. To be clear, we've never -- we have not aware of an 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, they -- they -- 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.
Counsel, 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 1 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.
“The Justice is framing a key analytical distinction—whether the argument challenges sex-based distinctions broadly or merely seeks an exception to biological definitions—which is primarily clarifying in nature. However, the framing subtly probes and tests the respondent's position, suggesting underlying skepticism about how the argument is characterized, making skepticism also significant.”
Thank you, Your Honor. We're not asking for a particular definition or even really an exception. I -- I think what we're asking for, it is similar to the -- the nature of the challenge that was brought in Caban. There, they were -- they were -- so the situation there were they were unmarried fathers that were barred completely from -- from objecting to their child's adoption. And, there, the fathers said: We'd like to be able to have that objection, we have a substantial relationship with the children. And in the -- in the group -- and there was actually a pretty tailored group in that case. In Justice Stevens' dissent, he points out it has to be an older child and there has to be participation in the rearing. For that subgroup, they were allowed to challenge that and get the relief. 1 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.
So what would be the appropriate inquiry, and it's asking you basically for your response to Mr. Mooppan in -- in particular, that going sort of challenge by challenge, whether it's based on transgender status or anything else, in this situation is really transforming intermediate scrutiny to strict scrutiny.
“The Justice is pressing the respondent to address the opposing counsel's argument that a challenge-by-challenge approach transforms intermediate scrutiny into strict scrutiny, which signals both genuine inquiry about the appropriate standard and some skepticism about the respondent's position. The framing invites the respondent to rebut a specific critique while also probing the logical implications of their approach.”
We agree there would have to be a group. I don't think -- 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 Sorales -- Morales-Santana. I would also direct the Court to the -- the illegitimacy or the non-marital children case. Those are Trimble and Lalli. They're cited in the B.P.J. brief in the same way that I think the Court looks is there a 1 definable group that's not just a person who happens to not meet the -- the fit but actually a group where the rationale doesn't make sense for the subgroup. 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 -- it was, you know, non-marital children who had had confirmation of paternity and a relationship with the father.
Well, that sounds an awful lot like strict scrutiny. Or, unless you're going to say whenever you can come forward with anything that is an exception to the boy/girl distinction, any case at all, you have -- you -- you can go forward with -- with a strict scrutiny challenge, whether it's -- whether it's, you know, 1 percent 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.
“The Justice is directly challenging the respondent's legal framework by suggesting it effectively amounts to strict scrutiny — a standard the Court has not applied to sex-based classifications — and pressing on the logical implications of their position. The phrase 'I'm just not quite sure grasping why your position isn't really an effort to apply strict scrutiny' signals strong doubt and probing of the argument's consistency.”
Thank you, Your Honor. I mean, all I can say, and I do agree the 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. 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 -- 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 1 steps that he needed to do. The same thing with Lehr and the same thing with Lalli in the Trimble/Lalli line. So you --
-- 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 allowed if it were strict scrutiny.
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?
“The Justice is probing the breadth and implications of respondent's approach, suggesting it could lead to wide-ranging challenges beyond athletics wherever sex-based distinctions exist. This signals both skepticism about the argument's scope and concern about its potentially sweeping consequences across many other contexts.”
Your Honor, I -- I -- I do think that the question would -- I -- 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 1 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. 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? You know, 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 was --
Okay. This -- and this will be my last question --
“This is a purely procedural statement indicating the Justice is wrapping up their line of questioning. There is no emotional valence or evaluative content — it is a standard administrative remark managing the flow of oral argument.”
-- for my -- 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, that would -- if we adopted that, that would have to apply across the board and not simply to the area of athletics.
“The Justice is probing the logical implications of the respondent's argument, suggesting that a rule allowing exceptions to the definition of 'girls' in athletics would necessarily apply more broadly — a skeptical challenge about the scope and consistency of the legal position. There is also concern about unintended consequences if such a framework were adopted.”
I mean, I think, as a general framework for equal protection challenges that, 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 are treated -- they're not being treated differently than similarly situated individuals.
You -- 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 1 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?
“The Justice is probing the logical consistency of the respondent's argument by pressing on the boundaries of the 'defined group' requirement — asking why the principle wouldn't extend further to individuals. This is classic skeptical questioning that challenges the internal coherence of the legal position, though it also has elements of genuine clarification seeking about the contours of the rule.”
I don't think the Court has foreclosed that other than this -- this actual obvious conceptual question of, like, 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? 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.
And what are the requirements of -- what does that group have to look like? Mr. Mooppan suggested that it has to be, you know, fairly sizable. It can't be 1 1 percent or less. You know, why not? Why? What are the other requirements? Like, how do you go about defining which group -- which -- which subclasses get to make this challenge and which subclasses don't?
“The Justice is pressing for specific criteria and line-drawing rules about group composition requirements, probing the weakness of an undefined standard while also genuinely seeking clarification on how the test would work in practice. The rapid-fire questioning ('why not? Why? What are the other requirements?') signals skepticism about the viability of the proposed framework.”
That's a good question, Your Honor. I think, in Trimble -- this is again the non-marital children case cited in the B.P.J. 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. I don't think anything in your -- 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 a discrete subgroup, transgender women who do not have an athletic advantage. I --
But I don't think you're answering Justice Kagan's question, which is fine if you -- if you buy into the you 1 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?
“The justice directly calls out that counsel is not answering the question, which shows mild hostility and skepticism, while simultaneously redirecting to clarify the actual question at issue regarding the 'big enough' subgroup standard. The combination of pressing for a direct answer and probing the legal standard reflects both skepticism and a clarifying intent.”
I don't agree with that. I think that is the -- I think, in a way, this is the Caban dissent kind of coming back after many decades because, there, Justice Stevens said in the dissent he's assume -- that the case in that -- 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 that -- some sort of a principle that allows for the exception in light of the failure to align with the interest that the state's asserting. And, here, I think the record -- and, again, we're at a preliminary injunction stage, but the preliminary record was that the exclusion of our client actually was not going 1 to advance the interests nor the exclusion of other transgender women who do not -- who have taken efforts to mitigate their testosterone, which was -- on the record here, again, was the main driver of differential athletic performance.
Counsel, one might wonder whether the efforts to refashion our 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 have been your primary argument, which is that transgender status is itself a discreteness or a class. And I -- 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 pointed to in your brief don't address transgender persons as such and that makes all the difference. Thoughts?
“The Justice is intellectually probing why counsel chose to argue on sex discrimination grounds rather than on transgender status as a discrete class, suggesting curiosity and engagement with the strategic choices made. The phrasing 'one might wonder' signals mild skepticism about the litigation strategy, but the overall tone is exploratory and inviting counsel to elaborate on an argument they haven't fully developed.”
Well, you're -- thank you for the opportunity to address that. I think we were trying to find the most straightforward way to help the Court to an 1 answer here. And I think we do the --
Well, I've been wondering what's straightforward after all this discussion. (Laughter.)
“This is a wry, humorous remark that elicits laughter, suggesting the Justice is lightly poking fun at the complexity of the discussion rather than expressing serious skepticism or hostility. The comment reflects mild ironic engagement with the proceedings, with a largely neutral-to-playful tone.”
No, I understand. I think these are -- these are older cases, but they are -- it's very interesting to see the debate between the majority and Justice Stevens and then Justice Stevens and O'Connor kind of admitting that he was applying his dissent in Caban. So these are cases from the Court. We think they have some --
But, to the question you've asked, I do think it's important to -- I think, to begin with, you heard my friend on the other side talk about -- not 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 way -- that was the actual decision of this Court in the Boutilier case. 1 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. And then that --
Perhaps not our finest hour.
“This wry, self-deprecating comment likely refers to a past Court decision or action that the Justice acknowledges was less than ideal. It carries mild concern or embarrassment about prior institutional conduct but is delivered with understated humor, giving it a largely neutral-to-concerned tone rather than strong skepticism or hostility.”
Well, it's not your fault, but I think that -- (Laughter.)
Thank you for that. (Laughter.)
“This is a brief, polite acknowledgment accompanied by courtroom laughter, suggesting a light moment of levity. The tone is neutral-to-mildly appreciative, likely a procedural or humorous transition rather than substantive approval of a legal argument.”
No, no, no. Well, and I -- and I -- 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 U.S.C.C.A.N. 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 1 think reading Boutilier and reading the U.S.C.C.A.N. that's cited in Boutilier is instructive. 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. So, again, I appreciate it, 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 1 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'd 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.
Well, to pick up on the issue of discrimination on the basis of transgender status, let me just go back to -- 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?
“The Justice is returning to foundational premises by asking a basic definitional/structural question about sex-segregated sports teams, which serves to establish common ground before exploring the transgender discrimination issue. This is characteristic of intellectual engagement and clarification-seeking rather than skepticism or hostility.”
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?
“The Justice is probing the constitutional implications of sex-based classifications under the Equal Protection Clause, suggesting that any law distinguishing based on sex requires a foundational legal understanding of those categories. This blends intellectual engagement with underlying concern about the broader constitutional ramifications, as well as some skepticism about whether the framework being argued is coherent without such definitional grounding.”
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?
“The Justice is genuinely seeking a legal definition of sex/gender for equal protection analysis purposes. The phrasing 'what does it mean' is a direct clarifying request, though the underlying question also carries intellectual engagement as the Justice probes the conceptual foundations of the respondent's argument.”
Sorry, I misunderstood your question. I think that the underlying enactment, whatever it was, the policy, the law, the -- would have to -- 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.
Well, how can you -- how can a court determine whether there's discrimination on the basis of sex without knowing what sex means for equal protection 100 purposes?
“The 'how can you' framing signals skepticism toward the respondent's position, challenging the logical coherence of proceeding without a defined legal meaning of 'sex.' However, it also has a genuine clarifying dimension, as the Justice is probing what analytical framework the court would use.”
I think, here, we just know -- we -- we -- we basically know that the -- that they've identified pursuant to their own statute that 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?
All right. Suppose this school that has a boys', let's say, track team and a girls' 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 girls' team?
“The Justice is posing a detailed hypothetical to test the boundaries of the respondent's position, exploring how far the argument extends in a challenging edge case. The specificity of the hypothetical (no medical transition steps taken) suggests intellectual probing and engagement with the legal question rather than hostility or strong skepticism.”
Sorry. So your hypo -- just a birth-sex male who has all the --
-- advantages a birth-sex male, hormones?
And can the school bar him from the women's team?
But that person -- is that person not a woman in your understanding? If the person says, I sincerely believe I am woman, I am, in fact, a woman --
“The Justice is pressing the respondent to clarify their position on gender identity, specifically whether sincere self-identification as a woman constitutes being a woman under their argument. The interrupted phrasing and follow-up reformulation suggest mild skepticism while probing the logical boundaries of the respondent's framework, but the primary intent appears to be clarifying the scope and implications of the argument.”
-- is that person not a woman?
“The terse, pointed question challenges the respondent's position by pressing on a definitional boundary, suggesting skepticism toward the argument. The rhetorical structure ('is that person not a...') implies the Justice finds a potential inconsistency or flaw in the reasoning, though it also carries a clarifying element by seeking a direct answer about classification.”
I -- 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 -- that's the rationale for the regulation, and so that's the reason -- that's the way we would be testing that hypothetical.
Well, the -- the 102 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 girls' team, then that person is being subjected to differential treatment based on transgender status, right?
“The Justice is probing and challenging the respondent's position by restating it in terms of explicit discrimination on the basis of transgender status, using a 'what you seem to be saying is' framing that tests the logical implications of their argument. This is primarily skeptical in nature, with some concern about the discriminatory implications, and a clarifying element as the Justice works to pin down the respondent's position precisely.”
Well, that would be -- then the question would be whether it was -- 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 have -- 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 have 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 103 preliminary one where that doesn't present that question for the Court.
I mean, 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 -- what do you say about them? Are they -- are they bigots? Are they deluded in thinking that they are subjected to unfair competition?
“The Justice expresses genuine concern about the broader implications for female athletes who oppose transgender participation, while also engaging with the policy question beyond the narrow facts of the case. The rhetorical questions ('Are they bigots? Are they deluded?') probe the respondent's position with mild skepticism, challenging them to account for the perspectives of cisgender female athletes who feel disadvantaged.”
No, Your Honor. I would never call anyone that. And I -- I think what we're saying here is that you have to -- that's the reason why there is intermediate scrutiny or, even in -- in rational review, you don't legislate based on undifferentiated fears. You base it on trying to make a rational response to 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 104 creation of this law, I really would direct your Court -- 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 -- JA 105 through 112, there are numerous references to -- 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, 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.
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?
“The question probes the empirical basis of claims about transgender athletes dominating women's sports, testing whether the concern is proportional to actual evidence. It has a skeptical undertone—implying the feared outcomes may be overstated—while also engaging intellectually with the factual underpinnings of the argument.”
I think we -- I would direct your attention to -- there's a -- let me 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 105 participated and excelled. They actually are few and far between. You know 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, but I do think that -- and there is a brief that you -- in the amicus briefs that will share the examples of showing that's a bit overstated.
Would the analysis be different if they were more successful?
“This is primarily an exploratory, hypothetical question testing whether the legal analysis hinges on degree of success, showing intellectual engagement and probing the limits of the argument. The slight skepticism arises from implicitly questioning whether the current outcome-based reasoning is consistent.”
No, I think it would be, to the extent -- I mean, we've already covered that transgender people are a slice -- 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. 106 In the end of the day, we understand that there were legislatures that -- 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.
Well, just to put the big picture, and you know this 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 and girls' sports, and it's inspiring. And, there -- you know, some states 107 and 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, you know, create unfairness 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 -- there's a harm there, and I think we can't sweep that aside. And I just -- I think that's what's undergirding some of the concerns. Big picture, and there are harms on both sides, so I completely understand that. But I just want to let you respond to that because that is, you know, 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.
“The Justice is expressing genuine concern about the impact of transgender participation on women's sports, citing multiple authoritative bodies and individual harms to cisgender girls, while framing it as an opportunity for the respondent to respond. The tone is earnest and somewhat sympathetic to the opposing view, signaling underlying skepticism toward the respondent's position, but the Justice is explicitly trying to be fair by acknowledging harms on both sides.”
Thank you, Your Honor. And just to be clear, Title IX is a huge triumph, and I'm a veteran of women sports 108 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, you know, 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's somebody who's 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 counter-intuitively actually is more about circulating testosterone after puberty than a lot of the other things we might think are sex-related, then that -- 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 had not -- was similarly situated but was stronger in that one 109 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.
Counsel, can I ask you a question about analytically, in 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?
“The Justice is probing a logical inconsistency in the discrimination argument by pointing out that trans boys can play on boys' teams, suggesting the policy may not discriminate 'on the basis of transgender status' symmetrically — this is a skeptical challenge to the legal framing, though it also has a genuinely clarifying dimension as the Justice asks how to analytically categorize this.”
We -- we understand the point. And I think that might be relevant to a, for example, animus point, right, that we're 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 case as to whether the exclusion of a subclass was --
I'm talking about for triggering intermediate scrutiny if 110 transgender status is a suspect class.
“The Justice appears to be clarifying the specific legal framework being discussed—namely whether transgender status qualifies as a suspect class triggering intermediate scrutiny—rather than challenging the argument. The phrasing 'I'm talking about' suggests the Justice is refining or restating the question to ensure precise understanding of the legal standard at issue.”
Right. So, like Craig v. Boren, for example --
-- that's the one about the men that couldn't 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 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.
Another question about the science. So you were talking about circulating testosterone being kind of the marker. 111 Idaho is saying, well, that's not the only indication. There are other -- when I asked the question about six-year-old teams before that, that there are other just kind of genetic hard-wired differences maybe in size, et cetera, that don't have to do with circulating testosterone. Is it your understanding that testosterone is it?
“The Justice is genuinely seeking clarification on the scientific basis of the argument, asking whether testosterone is the sole relevant biological marker or if there are other genetic factors. The question is exploratory and information-seeking rather than adversarial, though there is mild skepticism embedded in the framing by referencing Idaho's counter-argument about other biological differences.”
-- the argument in the next case is that the record there was more about prepubertal and puberty.
I think that the 5 percent even is not clear whether that's just environmental or biological actually.
But I do think -- so there are other things that I think, like height, you know, bone size. There have been some other discussions of this. This is an 112 underdeveloped record, by the way. This needs to go back and have a full trial except that it's moot. (Laughter.)
But -- but I think the point there is that -- no, I'm not trying to make a point on that.
Yeah. No, no, no, I know. I know. I take the point.
“The phrase 'I take the point' signals acknowledgment and acceptance of counsel's argument, indicating approval or at least concession. The 'No, no, no' appears to be interrupting to signal understanding rather than disagreement, suggesting the Justice is indicating they already grasp the point being made.”
I just -- I'm not trying to pretend that I'm going to have a trial when we're not.
I take the point, yeah.
“The phrase 'I take the point' is an acknowledgment that the argument has been understood and accepted as valid, indicating mild approval. The casual 'yeah' adds an informal but affirmative tone, though it could also simply be a brief procedural acknowledgment, lending some neutral weight.”
But I think the point is that sometimes counter-intuitively 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 6 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.
Last question. So below, as I understand it, your client challenged the verification procedures?
“The Justice is seeking clarification about what occurred in the lower court proceedings, prefaced with 'Last question' which is a procedural marker. The phrase 'as I understand it' signals genuine clarification-seeking about the factual record rather than skepticism or hostility.”
Except when we were talking about how this might be administered, I -- 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 -- and -- and maybe not just once but maybe to periodic testing to make sure that the circulating testosterone was low enough?
“The Justice is genuinely seeking clarification about how a testosterone-testing policy would be administered while also expressing concern about whether periodic testing requirements might themselves constitute a violation or be overly invasive. The question builds on prior discussion and probes practical and rights-based implications of the proposed framework.”
Why wouldn't that be invasive?
“The 'Why wouldn't that be' construction is a classic rhetorical challenge implying the Justice believes the action IS invasive, directly probing a weakness in the respondent's argument. The short, pointed question signals skepticism with mild concern about implications.”
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 114 other cases where the Court has said intermediate scrutiny applies and you actually can -- you know, if there is minimal things you have to do to make yourself fall in the category that we want to keep protected, you can -- we can require that of you. But --
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, like, a pelvic examination or examination of someone's, you know, 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 have required the transgender person to stop their hormone treatment to get back to an endogenous level to be able to show they're endogenous.
Ah, okay. So the distinction between circulating and endogenous?
“The Justice is clearly seeking to confirm and crystallize a distinction just made by counsel, using a short restatement as a clarifying question. The 'Ah, okay' signals comprehension being formed, and the framing is purely aimed at understanding the terminology.”
Right. The point was that was actually in a way like -- and I'm not trying to cast aspersions -- but 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.
Thank you, counsel. Justice Thomas? Justice Alito? Justice Sotomayor?
“This is a purely procedural utterance with no emotional valence, consisting of a standard acknowledgment of counsel and polling of other justices for questions. It carries no substantive judicial sentiment whatsoever.”
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 -- and how do you respond to that? Secondly, Justice Barrett did raise earlier this law applies even to primary -- primary schools, correct?
“The justice is directly asking counsel to address specific legal issues (mootness and scope of the law), seeking clarification on points previously raised. The questions are neutral and procedural in nature, genuinely seeking responses and understanding rather than challenging or expressing skepticism.”
Taking your second 116 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 -- that is the law.
And -- 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 -- in their physical makeup that would cause harm or otherwise create an advantage, correct?
“The Justice is intellectually exploring a specific subgroup (primary school children) to test the boundaries of the argument about physical differences and competitive advantage. The phrasing 'no one could doubt' and 'correct?' suggests the Justice is building toward a logical point, likely engaging with the argument rather than strongly challenging it, while also seeking confirmation of a specific premise.”
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 intervenor who was worried about being subject to the sex verification. So we didn't really get into the building a record on the --
But the point is that the law might be overbroad in many ways.
“The phrase 'the law might be overbroad in many ways' signals both skepticism toward the respondent's position and concern about the law's scope. The use of 'but the point is' indicates the Justice is pushing back on the counsel's argument, suggesting the law may have broader constitutional problems than counsel is acknowledging.”
And there's still -- as you noted, this is a very -- this -- Idaho was the first or the second state to pass this law?
“The Justice is seeking factual clarification about Idaho's position in passing the law, showing genuine curiosity rather than any adversarial intent. The incomplete, conversational phrasing suggests engaged inquiry while gathering background information.”
It was the first. I mean, these cases come to you because --
And the record here was the most underdeveloped, correct?
“The question appears to be seeking confirmation of a factual point about the record's development, with some skeptical undertone suggesting the Justice may be probing a weakness in the respondent's position by highlighting the inadequacy of the evidentiary record.”
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 out for a trial.
And both courts said that the record had to be looked at more carefully.
“The Justice is summarizing or restating a factual point about lower court decisions, indicating a relatively neutral informational statement that could be used to clarify the procedural posture or gently support the need for further record review. The tone is neither strongly approving nor skeptical, leaning toward clarifying and neutral with mild engagement.”
All right. So answer the mootness question.
“This is largely a procedural directive instructing counsel to address a specific legal issue (mootness), with neutral/administrative tone. The 'All right' transition suggests moving the argument along, and the direct command to address mootness is procedural in nature, though there is a slight clarifying element in seeking a direct answer.”
I mean, 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 and intending to play sports. The Court granted the case. We were -- she was preparing for 118 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 has 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 -- that is just the truth. But whether the Court believes it's moot, that's -- you know, we put the facts before you for you to decide.
How -- how about her graduating this year?
“The Justice is asking about a factual development (the student's graduation) that may affect the case's mootness or practical implications, suggesting genuine clarification-seeking with some engagement about how this fact changes the legal landscape.”
There was a suggestion she might not.
“This brief utterance references a contrary suggestion, implying mild skepticism or a probing of the respondent's position, while also serving a clarifying function by raising an opposing view for counsel to address. The terse, elliptical nature keeps it somewhat neutral-to-engaged without strong emotional valence.”
As you can tell, we have -- college students have their -- so she is trying her best to get through college. I 119 think, at this point, and I'm just basing it on what I know as of 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.
Finally, in terms of the sports teams, the Olympic team, that all happened in 2025, after our president directed them to --
“This utterance appears to be a Justice referencing factual context about sports teams and the Olympic team in 2025, likely setting up a question or point about presidential directives. The tone is largely neutral/informational, with some engagement as the Justice appears to be contextualizing an argument, possibly to clarify or probe its implications.”
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.
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 120 individual. You have to come in and say there's a class that's not being treated appropriately. What is that class here?
“The Justice explicitly states 'I just want to get your understanding,' signaling genuine clarification-seeking rather than challenge. The question follows up on counsel's prior argument to pin down what exactly the class would be, indicating intellectual engagement in understanding the constitutional framework being proposed.”
Thank you, Your Honor, and I would say I haven't -- 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 male -- their biological advantage of being born male.
So who do not have an athletic advantage, I mean, for reasons of taking certain medications or hormones or --
“The Justice appears to be seeking clarification about the scope of who qualifies as not having an athletic advantage, trailing off mid-sentence suggesting genuine exploration of the definition's boundaries. The question probes the factual/medical basis for determining athletic advantage, combining clarifying intent with some engagement in working through the implications.”
Yeah. No -- no sex-based biological advantage. So that would -- that would -- it would encompass both people that had gone through the male puberty and had mitigated; it would also encompass others, like, that have not yet gone through puberty or that staved off puberty with the puberty blockers.
And as to those people, who has the burden of -- of -- of showing that the justification doesn't fit?
“The question probes the burden of proof allocation, which is a fundamental legal clarification. While there's some skepticism embedded in testing the respondent's position, the question appears primarily aimed at clarifying a technical legal issue about who bears the burden of demonstrating a mismatch between justification and application.”
I think that is on the -- that is the -- 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 failed to, and that's how those other cases proceeded.
You wouldn't think that because we -- we are talking about an as-applied challenge to a law that's -- that's facially, everybody concedes, legitimate, that the burden should shift to you?
“The Justice is pointedly questioning whether the burden of proof should shift to the respondent in an as-applied challenge to a facially legitimate law, suggesting doubt about the respondent's legal framework. The rhetorical framing ('You wouldn't think that because...') signals skepticism toward the respondent's position on burden-shifting.”
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 Lehr, the state had made an adequate showing to show why the -- the -- the parent in that case was properly excluded.
And how do you think the question of scientific uncertainty should 122 play out in an analysis like this?
“The question invites counsel to explain their view on how scientific uncertainty factors into the legal analysis, reflecting intellectual curiosity and genuine engagement with the issue rather than skepticism or hostility. There is a mild concern undertone given that scientific uncertainty often signals potential risks or consequences, but the open-ended framing ('how do you think') is primarily exploratory.”
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 a 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 --
Just play it out a little bit, if there were scientific 123 uncertainty.
“The phrase 'just play it out a little bit' signals intellectual curiosity and exploratory engagement, inviting the counsel to develop a hypothetical scenario involving scientific uncertainty. This is characteristic of a justice probing the logical implications of an argument without overt skepticism or hostility.”
I mean, if it really were in equipoise, then I think that that is a situation where the -- I think it's -- it's still heightened scrutiny. So, under 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 give the -- do we allow the state some leeway, I could see -- 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.
Just to follow up on that, I wonder if that starts to sound like strict scrutiny because, if there -- the point of intermediate scrutiny, of course, is some leeway for the state, not a perfect fit, at least in the facial area. 124 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 -- you've been very careful, I think, and rightly so to talk about mitigating advantage. But I don't know -- you know, does the state have to show that it -- it eliminates advantage and it doesn't eliminate -- you know, some percentage of advantage remains in each individual case or for the group as a -- I -- I'm -- 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.
“The Justice is genuinely struggling to understand the legal standard being applied, combining clarifying intent with intellectual engagement about the implications of intermediate scrutiny vs. strict scrutiny. There's mild skepticism about whether the respondent's framing inadvertently raises the bar to strict scrutiny, but the tone is exploratory and self-deprecating rather than adversarial.”
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 125 is the categorical exclusion is really not supported, I don't think, by any science. There's going to -- this, again, was from kindergarten through college, and so there would 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 Cleburne case. And so I think there's a --
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 -- and that's understandable. And I'm just wondering how does that fit with -- assume -- 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?
“The Justice acknowledges the complexity of the record while probing how scientific uncertainty interacts with the level of scrutiny applied, showing genuine intellectual engagement and clarifying intent. The phrase 'I appreciate all of that' signals mild approval before pivoting to a probing question about how factual disputes affect constitutional analysis, reflecting a mix of clarification-seeking and substantive engagement.”
At the end of the day, it's the -- it's the state's burden to show a 126 substantial relationship. And I think, in the case of something where they're doing their best and have the best evidence to -- some evidence to support what they're doing --
Some evidence? The best evidence? Exactly. I mean, that's the --
“The Justice appears to be enthusiastically affirming or echoing a point made by counsel, with 'Exactly' and 'I mean, that's the --' suggesting strong agreement and validation of the argument. The rhetorical repetition of 'Some evidence? The best evidence?' reads as the Justice building toward approving the distinction being drawn.”
A level of evidence that wasn't met here. Let's put -- so the -- the one -- 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 --
No, I totally agree 127 with that.
“The Justice explicitly states 'I totally agree,' which is a clear expression of approval and agreement with the counsel's argument. The emphatic 'totally' reinforces the strength of the affirmation.”
-- 50/50 versus 80/20. That's --
Well, all right. But 50/50, does the government win, does 70/20, the government win? That's what I'm getting at. That -- I -- I understand the -- the complexity of the record and the difficulty of the science, but if we're -- 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.
“The Justice is pressing counsel on the practical difficulty of establishing a legal standard for causation percentages, showing skepticism about workability of the proposed framework while also expressing genuine concern about how courts would apply such standards in future individual cases. The 'that's what I'm getting at' phrasing indicates persistent probing of an unresolved issue.”
No, I understand that. I mean, VMI does provide some sort of a -- a -- a metric of what we would do there, which was we look 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 -- 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 128 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 a -- that -- that -- 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.
So that would remain for us to decide at a later point?
“The Justice is seeking to confirm the procedural posture of an issue — whether a particular question remains unresolved for future decision. This is primarily a clarifying question about the scope of the current case, with mild engagement and a neutral procedural tone.”
I -- I do think that's the most prudent but definitely on a record that's more developed because I think a lot of the -- 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 a transgender woman actually to the extent there are -- and you repressed your testosterone, you're at some somewhat of a disadvantage in many ways because you have, again, this larger 129 frame with weaker muscles and no testosterone.
Just to follow up on Justice Gorsuch's question, a broader frame about the role of this Court when there's scientific uncertainty, I mean, there will be different district courts who do different things almost certainly in different cases, and, in an area of scientific uncertainty, where there's 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 130 argument's been the more people learn, the more they'll agree with you. At least I -- I -- I've detected that theme in your argument. So why would we get involved at this point and constitutionalize?
“The Justice is strongly questioning why the Court should intervene and constitutionalize a rule when there is scientific uncertainty and ongoing societal debate, signaling skepticism toward the respondent's position that the Court should act now. There is also notable concern about the implications of premature judicial constitutionalization on an evolving issue, while the hypothetical framing and intellectual exploration add an element of engagement.”
I understand the question, Your Honor, and I do think that the Equal Protection Clause's demands have never been viewed as kind of a -- you know, 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 in 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, 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. I'm learning things by reading these cases over again. There were findings in those cases. 131 And so I think that at least before the Court decides to either step back 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 Barrett? Justice Jackson? Thank you, counsel. Rebuttal. REBUTTAL ARGUMENT OF ALAN M. HURST ON BEHALF OF THE PETITIONERS
“This is purely procedural language managing the flow of oral argument — checking if other justices have questions, thanking counsel, and announcing the rebuttal segment. There is no emotional valence or substantive legal content.”
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 the Court -- we cite Your Honors to the U.N. Special Rapporteur's report that says 600 women have lost 890 medals in 29 different sports. That's 132 what we're talking about. It is a real threat. Medical transition does not reliably suppress all male athletic advantages. I'd cite Your Honors to our record in which our expert, Dr. Brown, shows the experience of one CeCe Telfer, an elite track athlete who -- 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 in which testosterone suppression does reliably 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 Respondents' counsel, she agreed with us that this is not the same as the -- as the 133 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 the discrimination that has -- 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. In fact, as our briefs argue, the Court can and should avoid all these questions by applying rational basis review. Bottom line, sports are assigned by sex because sex is what matters in sports. It is 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 134 constitutional scrutiny. The Court should uphold the Fairness in Women's Sports Act and reverse.
Thank you, counsel. The case is submitted. (Whereupon, at 11:57 a.m., the case was submitted.)
“This is a purely procedural closing statement marking the end of oral argument, with no emotional valence or substantive content whatsoever. Standard administrative language used to formally conclude proceedings.”