We'll hear argument next in Case 24-43, West Virginia versus B.P.J. Mr. Williams. ORAL ARGUMENT OF MICHAEL R. WILLIAMS ON BEHALF OF THE PETITIONERS
“This is a purely procedural statement calling the next case and inviting counsel to begin argument. It contains no emotional valence, questioning, or evaluative content whatsoever.”
Mr. Chief Justice, and may it please the Court: States have long assigned students to sports teams by sex. West Virginia is no different. Maintaining separate boys' and girls' sports teams ensures that girls can safely and fairly compete in school sports. The question today is whether this enduring structure can -- can continue. It can. Title IX permits sex-separated teams. It does so because biological sex matters in athletics in ways both obvious and undeniable. The text, history, context, and structure of the statute, alongside regulations expressly authorizing what West Virginia has done, confirm as much. Respondent says that West Virginia 1 schools can no longer designate teams by looking to biological sex. Instead, schools must place students on sports teams based on their self-identified gender. But that idea turns Title IX, a law Congress passed to protect educational opportunities for girls, into a law that actually denies those opportunities for girls. The Court should not embrace that backwards logic. Aside from its problems with Title IX, the decision below constitutionalizes one side's view of a hotly disputed issue. But West Virginia's law does not offend the Equal Protection Clause either. The West Virginia legislature reasonably and rationally defines sex based on biology and acknowledged the physical differences that biology creates. Given those differences, the law satisfies rational basis review. And the state's law satisfies even intermediate scrutiny because it is substantially related to the important governmental interest in ensuring fairness and safety in girls' sports. Respondent attacks the law by searching for a transgender classification that 1 simply isn't there. The law is indifferent to gender identity because sports are indifferent to gender identity. Ultimately, West Virginia's law, like the laws of at least 26 other states, simply preserves the enduring structure on which girls' sports depends. It should be upheld. I welcome the Court's questions.
What's your view of what Title IX -- how it defined the separated sexes, male and female?
“The Justice is directly asking counsel to explain their interpretation of how Title IX defines sex categories, which is a straightforward clarifying question seeking counsel's position on a statutory definition. There is mild engagement as the question probes a foundational legal issue in the case.”
So, under Title IX, Your Honor, we would look to the ordinary understanding of sex at the time that Title IX was passed, 1972, and I think also relevant would be 1974, when the Javits Amendment was passed. And at that time, the ordinary understanding of sex was biological sex, consistent with the understanding of sex reflected in West Virginia's statute. I think that's also consistent, frankly, with this Court's own understanding of sex in -- in some of its own cases like Frontiero, where it likewise focused on things like reproductive function.
Well, with that definition, how would you square this challenge with the existence of, continued existence of, Title IX?
“The phrase 'how would you square' is a classic skeptical probe, challenging the petitioner's definition by pointing to a potential inconsistency with Title IX's existence. The Justice is testing whether the argument's logical implications would undermine established law, signaling doubt about the petitioner's position.”
So I think this challenge fails under Title IX and, in fact, it amounts to a back-door attack on Title IX in the sense that Title IX itself contemplates sex distinctions, and express regulations specifically applying to the context of athletics expressly contemplate the distinctions between sex of male and female sports teams.
In interpreting this definition, would it make a difference or does it make a difference that this is a Spending Clause statute?
“The Justice is exploring whether the Spending Clause nature of the statute should affect statutory interpretation, which is an intellectually curious probe of a relevant legal principle rather than a challenge or critique. The phrasing 'would it make a difference or does it make a difference' signals genuine inquiry and intellectual exploration rather than skepticism or hostility.”
I think it absolutely does, Your Honor. Obviously, in the Spending Clause context, as this Court has somewhat recently reminded lower courts, it's important for Congress to speak with an even clearer voice because of the contractual nature of the conditions that are imposed. States like West Virginia have to 1 understand exactly the obligations that they're assuming in -- in the context of a Spending Clause analysis. And so it amounts to effectively a canon of construction that requires that clearer statement in order for the condition to attach.
Counsel, I -- I would have thought that's an interesting argument, that this is Spending Clause legislation in Title IX, and Congress has to speak with a particularly clear voice, and whatever it said here isn't clear enough. You didn't raise that argument.
“The Justice acknowledges an interesting argument but immediately points out it wasn't raised, suggesting a procedural waiver challenge. The tone combines mild approval of the theoretical argument's merit with skepticism/criticism that counsel failed to properly preserve it, which undermines counsel's position.”
And there's an argument from your friend on the other side that you waived the argument or forfeited it at least.
“The Justice is raising the opposing counsel's waiver/forfeiture argument, probing whether the petitioner properly preserved the issue below. This is moderately skeptical in nature as it challenges the petitioner's ability to advance the argument, while also serving a clarifying function by inviting the petitioner to respond to the procedural objection.”
And it sure isn't the lead argument in your brief. Help me out. Why?
“The Justice is pointedly noting that the argument being made wasn't prioritized in the brief, signaling skepticism about its importance or validity, while also genuinely asking for explanation ('Help me out. Why?'). The phrase 'it sure isn't the lead argument' carries a mildly confrontational edge suggesting doubt about counsel's strategic choices.”
So we, of course, start with the plain text of the statute, Your Honor, as this Court has told us to do several times.
Yeah, well, the -- you know, I might start with the -- the constitutional authority under which that statute was adopted, counsel.
“The Justice is redirecting counsel to address the constitutional authority underlying the statute, signaling some skepticism about whether this foundational question has been adequately addressed while also showing intellectual engagement with the core legal issue. The informal 'Yeah, well' opener suggests a probing, slightly challenging tone rather than pure neutral clarification.”
I think that's equally compelling authority for our understanding of the --
Equally compelling? Constitution, equally?
Perhaps -- perhaps greater compelling authority.
Yeah, I would have thought, yeah.
“The casual affirmative 'Yeah, I would have thought, yeah' suggests mild agreement or concurrence with a point just made, though its informal, brief nature makes it largely neutral/procedural. The repetition of 'yeah' lends a slightly approving tone without strong conviction.”
West Virginia, as you know, I think --
So why -- why isn't it in your brief?
“The repeated 'why' and direct challenge about the brief's omission signals skepticism and mild hostility — the Justice is questioning the completeness or adequacy of counsel's argument by pointing out that the argument being made orally was absent from the written brief.”
West Virginia is maybe uniquely a fan of clear statement rules, as Your Honor might know from past cases, but in the Spending Clause context, I think it is, in fact, the case that your Court has repeatedly stressed that Congress has to speak without exception --
I know what we've 1 said. I'm wondering about what you didn't say.
“The Justice's pointed contrast between 'what we've said' and 'what you didn't say' suggests skepticism about an omission or gap in counsel's argument. The slightly dismissive 'I know what we've said' implies the counsel is relying on precedent without fully addressing something, signaling probing doubt with a mild edge of hostility.”
So I think, if you're looking at the way that West Virginia has characterized it, certainly, we have made that argument and presented that argument to this Court. I'd refer you to the topside brief. It's clear and centered under a clear heading. As -- I think what their suggestion is from the other side is that we didn't clearly enough raise that argument below. We would take issue with that characterization. There was obviously binding contrary authority in the Fourth Circuit. And so I think, strategically, we decided not to make that the front-and-center argument because we understood that was dead on arrival in that particular court. But that's not to say that we waived the issue by any means. It's a canon of construction that continues to assist this Court in its application of the text of the statute.
But, counsel, can I just ask you about this, though? Have we ever applied the Spending Clause's notice requirement outside of the damages context? 1 Because, here, we're not talking about a situation in which B.P.G. is seeking damages, and I thought that was sort of a crux of the Spending Clause analysis.
“The Justice is probing a potential weakness in counsel's argument by questioning whether the Spending Clause notice requirement has ever been applied outside the damages context, suggesting the argument may be misapplied here. While framed as a genuine question seeking clarification, the underlying thrust challenges the legal foundation of counsel's position, making skepticism the dominant sentiment.”
I will concede, Your Honor, that many of the cases that talk about this arise in the context of -- or maybe even all of --
All of the cases arise in the context --
I'll concede as much, yes, Your Honor. But I don't think the Court has ever suggested that the specific request for damages is the reason for its analysis. And I think that actually would be inconsistent --
But we would be having to address that, I guess, and extend it in the -- in this context if we were to take a Spending Clause tack.
“The Justice is exploring the implications of adopting a Spending Clause approach, noting it would require extending existing doctrine into a new context. This reflects intellectual engagement with the legal framework alongside mild concern about the analytical work such an extension would require, without strong hostility or clear approval.”
I would respectfully disagree, Your Honor. I would say that just because the Court hasn't done so before doesn't 1 mean it's an extension per se. I think that what the Court has said is that you view the language of these statutes as effectively contractual agreements. And I think that that same sort of contractual logic applies whether you're asking the state to pay out damages or whether you're asking it to take specific action under compulsion of action.
So -- so who's the -- who -- who -- who is the contract between here? And -- and I thought the regulated party needs to know what it's agreeing to so it can consent, but, here, the regulated party is the schools and it's the state that's coming in. So I'm just trying to understand how the Spending Clause analysis works in this context.
“The Justice is genuinely trying to work through the doctrinal mechanics of Spending Clause analysis in this specific context, explicitly stating 'I'm just trying to understand.' The stammering ('who -- who -- who') suggests real-time thinking rather than rhetorical challenge, and the question probes the structure of the contractual relationship without overtly challenging the party's position.”
So I think the state is certainly one party that does receive federal educational funds, but it's also the many other Petitioners that stand before you, including the county school board and the state school board, are also Petitioners in this case. I think there would certainly be -- if anybody were clearly bound by the conditions of 1 Title IX, it would be --
So it would map on. I mean, I guess I'm -- I'm worried that --
“The phrase 'I'm worried that --' is a direct signal of concern about implications or consequences of the argument. The trailing off mid-sentence suggests the Justice is grappling with a troubling realization rather than simply seeking clarification or expressing skepticism.”
-- this might actually implicate the question that we didn't resolve in Moyle, and so we'd have to kind of figure that out because it seems like it's a different set of facts than the typical Spending Clause application.
“The Justice is intellectually exploring how this case might raise unresolved questions from Moyle and how the facts differ from typical Spending Clause applications, signaling genuine engagement and curiosity. There is some concern about the implications of unresolved legal questions, but the tone is primarily one of active intellectual exploration rather than skepticism or hostility.”
I think, if anything, Your Honor, this is maybe easier than your typical Spending Clause analysis because you've got everybody from the state all the way down to the local county school board, anybody and everybody who's involved in this case is a party to this action. In fact, you resolved a petition for cert from the Athletics Commission saying we're not actually a state actor, and the Fourth Circuit saw things quite differently. So I think there's really no concern in this case that you have an absent actor problem when it comes to the Spending Clause analysis. And, ultimately, of course, if it's 1 just a canon of construction, if you're looking for a clear statement, then I think it would apply regardless of the particular party who might be in front of you because the statute applies across the board. You know, the regulated party is going to be affected regardless of whether they happen to be in front of you in the given case.
Counsel, can I ask you a --
“This is an incomplete interjection where a Justice is seeking to pose a question, with no substantive content to indicate any particular sentiment. The phrase 'Can I ask you a --' is purely procedural and administrative, though it could lead to a clarifying or engaging question.”
I'm sorry. I presume that if it's statutory construction, a canon of statutory construction, it's hard to say you can waive that.
“The Justice is pushing back on a likely waiver argument by pointing out that canons of statutory construction are not the type of thing that can be waived, suggesting skepticism toward the opposing position. The 'I'm sorry' opener signals a polite but firm challenge to the argument being made.”
It -- it's very hard to say you can waive that, Your Honor, yes.
I just wanted to ask if, on your understanding of Title IX, you could have separated by sex classrooms in biology or in math based on some evidence that you have that say men are better at math and science. What are the -- what are the the 1 limits to your Title IX theory?
“The Justice is probing the logical limits and potential consequences of the petitioner's Title IX theory by offering a provocative hypothetical about sex-segregated classrooms based on stereotypical assumptions, clearly challenging the breadth of the argument and testing where the line should be drawn.”
So I -- I think your instinct there in part arises from the fact that we're skeptical of any notion that there are inherent differences. So I want to kind of acknowledge the -- the real reality of the situation.
Well, your whole position in this case depends on there being inherent differences, right?
“The phrase 'your whole position depends on' signals a probing challenge, suggesting the Justice is testing the foundational premise of the argument and may be skeptical of it. However, the question could also be clarifying the core assumption before proceeding to deeper scrutiny.”
It does. And I think that that's exactly why discrimination in the Title IX context, where it acknowledges merely inherent biological differences, that that's not discrimination. That's a distinction. And I think that's consistent with this Court's longstanding understanding of what discrimination means. It looks to differential treatment of similarly situated individuals. So even in a case like North Haven, you're talking about differential treatment of similarly situated individuals. So, if we're talking about in an athletic context, you're not addressing similarly situated individuals. And I think, again, the Javits Amendment and 1 the regulations that flowed from the Javits Amendment are a realistic reflection of those --
-- meaningful biological differences.
But the Javits Amendment gives you a reason in the sports context you need to do it.
“The Justice is pushing back on counsel's argument by pointing to the Javits Amendment as a counterpoint, suggesting skepticism about counsel's position that there's insufficient reason for the action in the sports context. The phrasing 'gives you a reason' implies the Justice sees a flaw or gap in counsel's reasoning.”
I'm just wondering whether, you know, your friends on the other side have basically conceded that Title IX allows sex-separated sports teams, so I don't know that we need to really get into that. I'd be a little bit concerned about what the ramifications of that might be. And the Javits Amendment in the context of sports makes a difference anyway, but more broadly, I mean, if -- if -- if some -- if a state produced some studies saying, listen, you know, women's presence in, you know, calculus is holding men back because 1 they're so much more capable and they can just move so much more quickly, seems to me like there would be some risk on your understanding that that would be okay.
“The Justice is probing a potential weakness in petitioner's argument by constructing a reductio ad absurdum hypothetical (women holding men back in calculus), signaling skepticism about where the logic of the argument could lead. The phrase 'I'd be a little bit concerned about the ramifications' and the extreme hypothetical both indicate concern about dangerous implications of the petitioner's position.”
I think, again, realistically, Your Honor, that would almost certainly fail on the lack of --
Well, how about chess club?
“This short, colloquial question appears to be a hypothetical counter-example or analogy being offered to probe or test the petitioner's argument, suggesting intellectual engagement and mild skepticism. The casual 'how about' phrasing indicates the Justice is exploring the boundaries of the argument rather than expressing hostility.”
A chess distinction, I think, again, might fail because there's an actual lack of evidence of meaningful physiological differences that are reflected in the existence of the express regulations in the athletics context.
I mean, I think a lot of people would say, you know, if you look at the ranks of chess Grand Masters, there are not a whole lot of women there, and, you know, what does that mean? Well --
“The Justice appears to be engaging intellectually by raising an analogy about chess Grand Masters and gender disparity to probe the broader implications of the argument, likely exploring whether statistical underrepresentation alone is meaningful or proves discrimination. The trailing 'Well --' suggests an exploratory, open-ended thought rather than a definitive challenge, blending engagement with mild skepticism.”
-- I -- I -- I --
“This utterance appears to be a Justice attempting to interject or interrupt, indicated by the repeated 'I' with dashes suggesting a stutter or interruption pattern. The repetition suggests urgency or frustration but lacks sufficient content to determine clear sentiment, making neutral the dominant classification with mild hostility given the apparent interruption attempt.”
You know, I -- I think that there's a sort of intuitive -- I think 1 there are a lot of chess Grand Masters who would tell you that women just like for whatever reason, they're -- you know, they don't -- they're not very -- they're not as good as this.
“The Justice appears to be exploring a hypothetical or analogy about innate differences in ability, using chess grandmasters as an example to probe or test an argument about gender differences. The hesitant, exploratory phrasing ('I think,' 'for whatever reason') suggests intellectual engagement and thought-testing rather than hostility or strong approval, though the comment carries implicit concern about stereotyping that may be relevant to the broader legal argument.”
I -- I think chess is an interestingly closer question. I've come to understand just recently, in fact, that there are sex distinctions in the elite --
Well, let's -- let's -- you're fighting that hypothetical. And I -- I guess the question really is, okay, Title IX says you can't discriminate on the basis of sex.
“The Justice is redirecting counsel away from fighting the hypothetical, showing mild skepticism while also trying to refocus the discussion on the core legal question about Title IX's sex discrimination prohibition. The 'you're fighting that hypothetical' signals frustration with evasion, while the restatement of the core issue reflects clarifying and engaged exploration.”
I understand what that means. I think I do, right? Can't treat men and women differently. Okay, all right, fine. You're saying, ah, but it matters whether they're similarly situated. And your friends in the government like that line too. Well, there's -- you know, I've got a lot of evidence that -- that girls perform a lot better in high school than boys, okay? 1 There's a lot of scientific evidence, whatever, all right? Let's just posit that, all right? Well, so I'm going to have a special remedial program for boys and the women can't come and -- because they're not similarly situated. Why on earth would Title IX care about that? It says you can't discriminate on the basis of sex in a program or activity of your educational institution.
“The Justice is actively probing the 'similarly situated' argument by constructing a hypothetical to expose its potential weaknesses and absurd implications under Title IX, demonstrating strong skepticism toward the petitioner's reasoning while also showing intellectual engagement with the legal question.”
Why -- why put that gloss on it?
“The question 'Why put that gloss on it?' challenges the counsel's interpretive framing, suggesting the Justice doubts the necessity or validity of adding that particular interpretive layer to the text. The repetition of 'why' adds mild intensity, leaning toward skepticism while retaining some clarifying intent.”
And -- and, Your Honor, I want to be clear. I think the task for the Court today is somewhat easier in part because of the express regulations that they have actually not challenged and that do expressly contemplate exactly what West Virginia has done. So I think your -- your hypothetical, yes, of course, is there, but I think the reality is that Congress and the agency have together kind of addressed this specific question in a way that makes this Court's task much easier. 1 But I think the -- the problem may be with your --
There may be another answer. We don't need to rely on this similarly situated argument? Is that what you're trying to tell me, counsel?
“The Justice is genuinely seeking to understand whether counsel is offering an alternative legal pathway beyond the 'similarly situated' argument, with phrases like 'Is that what you're trying to tell me?' indicating clarification-seeking. There's a mild hint of engagement as the Justice probes the structure of counsel's argument, but the dominant tone is clarificatory.”
I think you could also take that approach, yes, Your Honor. And I think the reality is that that hypothetical addresses a situation that's much closer to the sort of exclusion and the specific context that gave rise to Title IX in the first place. And so I think that the Court would be much more legitimately concerned that that would detect the very problem that Congress trying to head off in passing Title IX in the first place. But I think that really kind of puts the lie to the -- the position that -- that West Virginia is somehow discriminating because it's advancing the very same purpose that Congress itself was trying to advance in enacting Title IX in the first place. I mean, that's why West Virginia somewhat deliberately made its -- its -- its law mirror the exact 1 same language from the express regulations themselves.
I'm afraid I've got --
“This appears to be a truncated procedural or administrative statement, likely 'I'm afraid I've got to stop you there' or a time management comment. The phrase carries no substantive judicial sentiment and is almost certainly a neutral, procedural interruption.”
-- one more question -- oh, I'm sorry, please.
“This is a purely procedural utterance where the Justice is managing the flow of oral argument, beginning to ask a question and then deferring to someone else speaking. There is no substantive content or emotional valence.”
Go ahead. No, you're --
“This is a brief procedural utterance, likely managing the flow of argument or an interrupted exchange. The 'Go ahead. No, you're --' pattern suggests a minor procedural correction with no substantive emotional valence.”
No, you can't do both. That's not fair. That's not fair, I mean, even -- even by our standards. You -- you -- you make the argument that "on the basis of" means "solely because of," solely. We have long said that "because of" means but-for, not "solely because of." The rehab act speaks of "solely because of." It seems to me an awful big stretch, counsel, to say that "on the basis of" imports anything other than but-for causation. And, you know, Comcast is against you there. 1 And I just wonder why -- why you put your eggs in that basket.
“The Justice is strongly challenging counsel's legal argument, calling it 'not fair' and 'an awful big stretch,' indicating both hostility toward the argument's inconsistency and skepticism about the statutory interpretation. The repeated 'not fair' and dismissive tone signal hostility, while the pointed questioning about precedent (Comcast, Rehab Act) reflects deep skepticism.”
So three answers, Your Honor.
And -- and -- and, by the way, isn't -- isn't -- isn't the -- the distinction here solely because of sex anyway?
“The Justice is probing the petitioner's argument by suggesting the distinction at issue is 'solely because of sex,' which challenges the framing of the case and implies sex discrimination may be more direct than the counsel has argued. The rhetorical 'isn't it' construction signals skepticism toward the petitioner's position rather than genuine neutral inquiry.”
Well, let me take each -- each of those in turn or I'll try. I don't think that the case turns on the Court accepting the idea that it's solely on the basis of sex, so I think you could stop --
That's a sufficient answer right there.
“The phrase 'That's a sufficient answer right there' signals approval and satisfaction with the counsel's response, indicating the Justice found it adequate or compelling. The slight neutral component accounts for the possibility it is a procedural acknowledgment to move the argument forward.”
Can you explain the relevance and significance of the Javits Amendment to distinguishing sports from all these other hypotheticals?
“The question explicitly asks counsel to 'explain the relevance and significance,' indicating a genuine desire for clarification and understanding of a specific legal provision. There is mild engagement as the justice explores how the Javits Amendment fits into the broader argument about distinguishing sports from other hypotheticals.”
So I think the relevance and significance is Your Honors are 1 faced with a unique set of regulations and that Congress was directly and intimately involved in both the instigation of the regulation in 1974 and then sort of --
And in that law referred to the nature of particular sports, right?
“The question appears to be seeking confirmation of a factual detail about a specific law's reference to the nature of particular sports. The phrasing 'right?' suggests the Justice is verifying their understanding, making this primarily a clarifying question with some engagement as they explore the legal framework.”
It -- it did. So what they said was we want you, the agency, HEW, to go ahead and implement Title IX writ large. And the -- it called out one specific problem that I -- I think arose on the floor about whether Title IX applies to intercollegiate athletics, in particular, intercollegiate athletics. And I would say --
And that's been extended to high school by the regulations.
“This appears to be a factual/clarifying statement where the Justice is noting or confirming that a particular rule or principle has been extended to high school level through regulations. The utterance is largely informational and procedural in nature, with mild engagement as the Justice appears to be building toward a larger point or question.”
But -- but ruling for you on sports does not open the door in my view given the Javits Amendment to the chess club necessarily. That could be separately analyzed, but it doesn't follow from a -- a law that says sports.
“The Justice is pushing back on what appears to be the opposing side's slippery slope argument, expressing approval of the petitioner's position by noting that ruling in their favor on sports would not necessarily extend to chess clubs given the Javits Amendment. This is a supportive, intellectually engaged statement that limits the scope of concern about broader implications.”
That's exactly right. 1 And that's exactly why we were trying to make your job easier in the sense that we took the language expressly from the regulations and mapped it over onto our own statute. So there's really no debate, if it's outside the context of Title IX, it's outside the context of our statute. So, at that point, the Court's analysis is done. But I think, when you have a regulatory scheme where Congress was specifically involved, you know, in fact, undertook a review, then that's exactly the sort of regulation that even in a post-Loper Bright world continues to have importance because it's longstanding, continuous, contemporaneously issued, all those sorts of check boxes that this Court under a Skidmore framework continues to place substantial weight on. So I think that makes the Court's task relatively straightforward.
Do you want to 1 deal with Bostock?
“This is a brief, procedural invitation for counsel to address a specific precedent (Bostock), with no clear emotional valence. It is largely neutral and administrative in tone, though it carries slight engagement as the Justice signals interest in hearing how counsel handles that case.”
I -- I think -- so I guess it depends on the way in which you mean does it deal in Bostock. I think it --
Well, if -- if an employer said we're going to fire all the transgender women --
“The Justice appears to be constructing a hypothetical scenario to probe the logical implications of the petitioner's argument, which is characteristic of intellectual engagement. The partial nature of the utterance ('Well, if...') suggests the beginning of a hypothetical meant to test the boundaries of the legal argument, with some concern about discriminatory outcomes embedded in the framing.”
-- that would be a violation. If a school says we're not going to allow the transgender women to play sports, you say that's not a violation. Both statutes use the term "sex." Can you explain?
“The Justice is pointedly highlighting an apparent inconsistency in the petitioner's position—arguing that the same term 'sex' in two statutes yields different outcomes—which signals skepticism about the logical coherence of the argument. The explicit 'Can you explain?' also carries a genuine clarifying component, inviting counsel to reconcile the contradiction.”
I think the reason why is, well, to be clear, our -- our statute is very different from a specific choice to say a transgender person shall not participate because of their transgender status. And I think that really is what makes the difference between this case and Bostock, is Bostock is attacking status-based discrimination, and West Virginia would, I think, be in a much different position if we had just said transgender persons shall not compete. But that's not what West 1 Virginia did.
What if it said transgender women and girls shall not compete in women's and girls' sports?
“The Justice is posing a direct hypothetical to test the boundaries of the argument, exploring how the petitioner's reasoning would apply to an explicit statutory provision. This is classic engagement — intellectual probing through a 'what if' scenario — with some underlying concern about the implications of such a rule.”
I think, again, that's a much closer question. I -- I think, if we're talking about engaging with the actual status of --
Do you think you could lose under Title IX with a statute that said that?
“The Justice is probing whether petitioner's Title IX argument would hold up under a hypothetical statute, suggesting skepticism about the strength of the legal theory while also showing intellectual engagement by testing the boundaries of the argument through a targeted hypothetical.”
I think -- Bostock, I think, is -- now I understand Your Honor's question. I think Bostock raises an interesting question as to whether that reference to transgender status would in turn implicate the sex status that Title IX is meant to address. But, ultimately, I think the Court doesn't need to address that because you can stop at the first step, right? You don't have an actual transgender exclusion that would give rise to that kind of linkage of analysis.
Thank you, counsel. 1 In terms of Bostock, I understand that to say that discrimination on the basis of transgender status is discrimination on the basis of sex. But the question here is whether or not a sex-based classification is necessarily a transgender classification, and I wonder if that is consistent with your understanding.
“The Justice is probing whether the logical converse of Bostock's holding applies — distinguishing between discrimination based on transgender status being sex discrimination versus whether all sex-based classifications are necessarily transgender classifications. This reflects both genuine clarification of the argument's logical structure and skeptical probing of its limits.”
It's entirely consistent I would say on the equal protection side in particular and also in the Title IX context, I think, for some of the reasons I just discussed with Justice Kavanaugh. I think the Court can stop and say that a sex definition and a reference to biological sex is not the same as a transgender classification. And I think, even if we engage in -- in the sort of but-for causation analysis, I think it's as simple as saying does the result change if you change the gender identity of the individual involved? And the reality is, if you apply the West Virginia statute to someone identifying as a -- you know, a biological boy identifying as a boy applies in the very same way as a biological boy identifying as a girl.
Justice Thomas? Justice Alito? Justice Sotomayor?
“This utterance is purely procedural, with a Justice polling colleagues to see if they have questions. There is no substantive content, emotional valence, or argumentative intent whatsoever.”
I find it strange that the district court and the court below did find a Title IX violation but not an equal protection violation and remanded for the equal protection violation. I'm not sure how it could do that because it would seem to me that if the evidence is not sufficient to justify finding an equal protection violation, it's not sufficient to find a Title IX violation. Is that correct at least on the record as it exists now?
“The Justice expresses skepticism about the lower court's reasoning, finding it logically inconsistent that the same evidentiary record could support a Title IX violation but not an equal protection violation. The phrase 'I find it strange' signals doubt about the court's logic, while the closing 'Is that correct?' has a clarifying dimension as the Justice seeks confirmation of their reasoning.”
Right. And so, to be clear, the district court actually ruled for West Virginia on both Title IX and --
And so the Fourth Circuit said you lose on Title IX and we're not sure about equal protection.
But assume the Fourth Circuit is right.
“The phrase 'But assume the Fourth Circuit is right' is a classic hypothetical setup directed at petitioner's counsel, suggesting the Justice is probing what follows if the lower court's ruling stands. The 'But' signals some skepticism toward petitioner's position, while the hypothetical framing indicates intellectual engagement to explore the logical consequences of the opposing ruling.”
Right. Well, so, in 1 answer to your question, I think that doesn't make sense, and I think the reason why it doesn't make sense is because the Fourth Circuit effectively stripped out -- what they said is Title IX doesn't leave room for any kind of justification or any kind of analysis of whether -- what -- what the reasons might have been for the state's action. And I think, respectfully, particularly when you look at the -- again, the regulations themselves, it does -- actually does contemplate exactly that sort of analysis.
I -- I agree with you on the regulations.
“The Justice explicitly states agreement ('I agree with you') on the regulations point, making this a clear expression of approval toward the petitioner's argument. The slight hesitation ('I -- I') suggests the Justice may be qualifying or setting up a contrast, but the direct affirmative statement dominates the sentiment.”
And so could you not have a Title IX violation but still have -- let's assume -- and I know you're going to fight the factual premise.
“The Justice is constructing a hypothetical scenario ('let's assume') while acknowledging the counsel's likely objection to the factual premise, indicating intellectual engagement and exploratory questioning rather than hostility or strong skepticism. The phrase 'I know you're going to fight the factual premise' shows the Justice is anticipating pushback, suggesting they are probing the legal landscape through hypothetical engagement.”
I'll try to embrace it, Your Honor.
All right, embrace it. All the scientific evidence showed that there's no difference between cisgender girls and trans girls. I know there's a fight about 1 that.
“The Justice appears to be pressing the petitioner to accept a premise ('embrace it') based on scientific evidence claims, testing how their argument holds up if that factual premise is granted. The 'I know there's a fight about that' acknowledgment signals awareness of controversy while still probing the logical implications, reflecting a mix of skepticism and intellectual engagement.”
It -- it hurts, but yeah. (Laughter.)
I know it hurts, but assume it. Could you not still have violated? Could you still -- could we hold that on -- as the regulation stands, the regulation would permit you to discriminate, but the Equal Protection --
“The Justice is intellectually engaging with a hypothetical ('assume it'), asking counsel to work through a scenario where even if the regulation permits something, an Equal Protection violation could still exist. The phrase 'I know it hurts' shows some awareness of the difficulty for counsel but pushes forward with the analytical exercise, reflecting active engagement and some skepticism about whether the regulation alone resolves the constitutional question.”
So, under -- let me -- let me try to get my head in the framework of assuming.
I think the regulation would still allow us under its express terms, right?
Assume -- I'm assuming yes.
“The Justice appears to be confirming or accepting a premise posed by counsel, indicating a brief clarifying/agreeing response. The 'I'm assuming yes' suggests the Justice is granting a factual or legal assumption to move the argument forward, which is a mix of clarifying and mild approval with neutral procedural undertones.”
Right. And so you're asking, even assuming our compliance with the regulation, could we still have a potential 1 equal protection problem?
In that world, I think we would still be fine under the equal protection analysis, frankly, for some of the reasons that you heard from the Solicitor earlier today, where it's because the -- even if you assume the heightened level of scrutiny, let's assume that we're in intermediate scrutiny world, it's still a reasonable fit. It's still -- it's not a perfect fit.
Then we're back to that point.
“This brief phrase suggests the Justice is tracking the logical flow of the argument and noting that a previous point of contention or issue has resurfaced. It carries mild skepticism in that it implies the argument hasn't moved past a problematic point, but it's largely neutral/procedural in redirecting the discussion.”
And I know we've had a long colloquy about that today, but, ultimately, I think that's what I answered.
I -- I just --
“This extremely brief, fragmented utterance ('I -- I just --') is most likely a procedural interruption or failed attempt to interject, suggesting mild hostility or impatience. The stuttering dash pattern indicates the Justice was cut off or self-interrupted, which could signal frustration or an abrupt interjection, but without more context the utterance is largely neutral/procedural.”
-- destroyed that by saying -- (Laughter.)
“This utterance is mid-sentence and cut off, but the laughter notation suggests a lighthearted or humorous moment in the proceedings. The truncated nature and accompanying laughter indicate a jovial, engaging exchange rather than adversarial questioning.”
-- that the science has said there's no difference.
“The Justice appears to be invoking scientific consensus as a challenge or counterpoint to the petitioner's argument, suggesting doubt about a distinction the petitioner is drawing. The mid-sentence fragment and reference to what 'the science has said' signals probing skepticism, though the incomplete context leaves some ambiguity about whether this is purely skeptical or partly clarifying.”
And we know that's not true. But assuming the science said there was no difference --
“The opening 'And we know that's not true' signals clear skepticism and mild hostility toward the premise being discussed, while the pivot 'But assuming the science said...' shifts toward hypothetical engagement to test the argument's logic even under a counterfactual assumption.”
-- how could you ever say it's reasonable?
“The rhetorical question 'how could you ever say it's reasonable?' strongly challenges the petitioner's argument, probing its logical foundation in a way that suggests deep doubt. The word 'ever' adds an absolutist, dismissive tone that edges toward hostility, but the core intent appears to be skeptical probing rather than outright rejection.”
So I'm assuming a world in which there's no difference between your -- so you're saying testosterone-suppressed individuals? Is that --
Or you're saying all -- all men and women, full stop?
Oh, okay. I apologize for misunderstanding the hypo. If we're assuming a world in which there's really no biological difference, full stop, as to men and women, full stop, then I think, right, the legitimate governmental interest falls away. I agree with you.
Justice Kagan? Justice Gorsuch? Justice Kavanaugh?
“This is purely procedural and administrative in nature, polling justices for questions and transitioning to rebuttal argument. There is no emotional valence or argumentative content whatsoever.”
There are, as we discussed, a bunch of states that allow biological males who identify as female, transgender women and girls, to play women and girls' sports. We were talking about that with the Solicitor General earlier. On your theory of Title IX, Title IX --
“The Justice is building toward a challenge or probe of petitioner's Title IX theory by referencing a prior discussion about states permitting transgender women/girls in women's sports — the setup suggests skeptical engagement, testing how petitioner's legal theory would apply to a specific scenario, with elements of both engagement and skepticism as the question appears incomplete but is clearly leading somewhere pointed.”
-- are those states violating Title IX rights of the biological females?
“The Justice is probing the logical implications of the petitioner's argument by asking whether states that allow transgender participation would be violating Title IX rights of biological females, suggesting skepticism about the argument's consistency or raising concern about broader consequences. The question tests the boundaries of the legal theory being advanced.”
I think it's a much closer question under Title IX than it is under equal protection, and I think the reason being is that the regulations specifically say there's the --
Well, what do you think the answer is under equal protection? I might as well ask that.
“The Justice is directly inviting counsel to articulate their own position on the equal protection question, showing intellectual curiosity and active engagement. The casual phrasing 'I might as well ask that' suggests exploratory dialogue rather than adversarial probing, though there is a mild clarifying element in seeking counsel's specific legal theory.”
So, under equal protection, I think we agree with our friends in Idaho that there's enough room for California to make a different determination.
I think, under Title IX, the reason why it's a closer question is because of the existence of the regs, and the regs start by saying you have -- you start with co-ed teams and then you can move down to sex-separated teams in the context of contact and competitive skill. And it really contemplates a real, genuine sex distinction in that move down (b) provision.
And then, of course, it pivots -- it also has the catchall where it says: But, actually, in the contact sports, you can't even -- you can't move back in the co-ed world. So I think, if a state is moving away from a genuine sex distinction, as the regulator contemplated and as Congress ultimately contemplated, then maybe they're kind of, if you think of (b) as a safe harbor in a sense, they're outside the scope of that safe harbor and now they're running into the problem in (a). So I don't think the Court needs to get into any of that if --
Right. I agree. I'm just trying to know --
“The Justice explicitly agrees with counsel ('Right. I agree.') indicating approval, but then pivots to seek further clarification ('I'm just trying to know--'), suggesting the primary intent is to understand a specific point better. The incomplete sentence signals a clarifying follow-up question.”
But I think that is -- it's -- it's a closer question at least than they --
Because your theory is that sex is biological sex in Title IX, or is that not your theory?
“The question is primarily seeking clarification about the petitioner's core legal theory regarding the definition of 'sex' in Title IX. The phrasing 'or is that not your theory?' suggests the Justice wants to precisely pin down the argument before probing it further, with mild skepticism embedded in the framing.”
No, that is. And it's not our theory, Your Honor. It's just the simple -- it's the ordinary understanding of what "sex" meant both in '72 and '74, when the regulations were themselves implemented. So I think we're just trying to be consistent with that.
Justice Barrett? Justice Jackson?
So I guess I'm trying to puzzle through whether or not there 1 is some independent form of discrimination against transgender women that is distinct from the sex separation that Title IX allows. So I appreciate that your argument is that because the regulations permit sex -- excuse me -- sex separation and that hasn't been challenged, that that should be the end of this inquiry basically. And I think you get there because you say you're sort of picking up on this idea that maybe this is just about a definition of who is a male or a woman. Is that right?
“The Justice is genuinely working through a complex legal question, using phrases like 'I'm trying to puzzle through' and 'Is that right?' to seek clarification and confirm their understanding of counsel's argument. The tone is intellectually exploratory rather than adversarial, with some engagement as the Justice maps out the logical structure of the argument.”
I think to some degree, but it's also, Your Honor --
-- it's just because we're -- we're indifferent to a person's gender identity in applying the law. I think that's --
But the law -- but the law actually operates differently, I think, for cisgender women and transgender women. That is, with respect to their desire to play on a team that matches their gender identity, cisgender women can do it, transgender women 1 cannot. And so we do appreciate a distinction, I think, that is being drawn on the basis of your gender status, gender identity status, trans or cis, right?
“The Justice is probing the legal distinction between how the law treats cisgender versus transgender women, pointing out that it operates differently depending on gender identity status. The rhetorical structure ('right?') and the logical unpacking of the asymmetry suggest skepticism toward the opposing argument, while also engaging intellectually with the classification framework being applied.”
So -- and I want to make sure I understand --
-- if we're operating in Title IX world or equal protection world because I think it might make a difference to the answer, but --
Okay. Title -- let's start with Title IX then.
“This is a purely procedural statement directing the discussion to a specific legal topic (Title IX). It has no emotional valence and serves simply to organize the oral argument.”
So -- so Title IX, I think the question of -- I look at this statute and see a distinction between boy and girl indifferent to gender identity. And I think that --
Right, but I'm testing that proposition, right?
“The Justice explicitly states they are 'testing' a proposition, which signals active probing of the argument's logical foundations. This is primarily skeptical behavior with strong intellectual engagement, as the Justice is pushing back on a claim to examine its validity without overt hostility.”
You see that distinction and I see it too on the separation-of-teams level at the beginning.
“The Justice explicitly agrees with counsel ('I see it too'), signaling approval of the distinction being drawn. However, the phrase 'at the beginning' suggests the Justice may be noting agreement only as a starting point before introducing a complication or limitation, hence the engagement component.”
Right. And I -- I think what I'm hearing is that that distinction arises from a difference in effect. And I don't see a disparate impact analysis that's sort of hidden away in Title IX.
But why is that a difference in effect? So it's like a second-order discrimination, right? The first order is separating male from female.
“The Justice is probing the logical structure of the argument by questioning whether the distinction being made actually creates a meaningful difference in effect, framing it as 'second-order discrimination.' The 'But why' phrasing signals skepticism while the conceptual reframing shows intellectual engagement in testing the argument's coherence.”
The second order is separating transgender women from cisgender women, right?
“The Justice is seeking to clarify the specifics of one of the orders at issue, confirming their understanding of what the second order entails. The phrasing 'right?' at the end signals a genuine request for confirmation rather than skepticism or challenge.”
Respectfully, I would disagree, Your Honor.
The reason why is just because I think anytime you have a classification, you could divide it into subclassifications, and I don't think that then becomes -- like, the law in the same way applies to brown-haired biological girls and blond-headed biological girls.
No, I understand, but I don't think you can get --
“The phrase 'I don't think you can get --' combined with an interruption mid-sentence strongly signals hostility or at minimum sharp skepticism, as the Justice is cutting off counsel to express disagreement with the logical conclusion of their argument. The 'No' at the start reinforces pushback.”
There's not a classification based on hair color.
I'm not sure -- and maybe this is switching to the equal protection. I don't think you can get out of the implications of making a classification by setting it up as a definition, you know, as a subclass. And so we've already okayed the classification because it's really all about classification. You can't distinguish in that way, right?
“The Justice is actively probing the logical implications of the petitioner's argument, suggesting that framing something as a 'definition' rather than a 'classification' doesn't escape equal protection scrutiny. The rhetorical 'right?' at the end and the challenge to the distinction signal skepticism, while the 'I'm not sure' opener and exploratory tone reflect some intellectual engagement.”
Well, I think what the Court said on the equal protection side is you look at the facial classification, and I think, here, it's effectively unconceded that the facial classification is between boy and girl. And I think, at that point, if -- maybe you have a situation where you think that the classification is somehow a proxy for some sort of secret secondary classification, but I don't hear them suggesting that.
No, but the -- the definition implicates another division. So here -- here's an example. So suppose that we have Title IX exempting, and I think it does 1 this, certain religious institutions from its requirements. And let's say Title IX defined -- then went on to define -- this is in my hypothetical --
“The Justice is constructing a detailed hypothetical scenario involving Title IX religious exemptions to explore and test the boundaries of the argument. The phrase 'this is in my hypothetical' signals intellectual engagement rather than hostility or strong skepticism, as the Justice is actively working through a complex analogy to probe the argument's implications.”
-- religious institutions to include only those institutions that proselytize. I mean, is that a classification problem or a definition problem? I would say it would be a classification problem and you'd still have to apply all of the heightened scrutiny just because, you know, they're defining religious institutions in a certain way. Similarly, here, you have the overarching classification, you know, everybody has to be -- play on the team that is the same as their sex at birth, but then you have a gender-identity definition that is operating within that, meaning a distinction, meaning that for cisgender girls, they can play consistent with their gender identity; for transgender girls, they can't.
“The Justice is actively probing the logical structure of the argument by constructing an analogy (religious institutions) and applying it to the transgender sports case, suggesting skepticism toward a possible classification/definition distinction the petitioner may be drawing. The extended hypothetical and intellectual construction also reflect significant engagement as the Justice works through the argument's logic.”
So I think that -- 1 okay. Your -- as to the part about your ability to pass over from boy to girl --
-- or you can go from one way but not the other, I want to be clear that B.P.J. is not challenging that specific classification. I think that's important to start with. But I think, if anything, that's useful evidence as to the lack of a transgender-based discrimination because, if the legislature were just sort of unsettled by the notion of transgender athletes, I think the answer would have been to then bar them from --
-- passing over in any way inconsistent --
I appreciate that. I guess I was getting at the -- what I understood the Chief Justice to be trying to discuss --
“The Justice is attempting to clarify or reframe a question previously raised by the Chief Justice, indicating a collaborative and clarifying intent. The phrase 'I appreciate that' signals mild approval before redirecting to the central issue being explored.”
-- which was this notion that this is really just about the 1 definition of who -- that we accept that you can separate boys and girls, and we are now looking at the definition of a girl and we're saying only people who were girl assigned at birth qualify.
“The Justice appears to be probing and somewhat skeptically reframing the petitioner's argument, suggesting that the law's definition of 'girl' based on birth-assigned sex is a contested premise worth scrutinizing. The phrasing 'this is really just about' signals some skepticism about the characterization, while also seeking to clarify the logical structure of the argument.”
And there is authority cited in our brief. This Court, I don't think, has ever phrased it quite as in the way of this definitional framing --
-- that we're talking about right now, but, certainly, cases like Jana-Rock in the Second Circuit do approach it from this sort of definitional framing. And they say that if you -- if you effectively concede that there is an initial ability to draw a classification, then that suffices to satisfy the intermediate scrutiny question. But then past that, the definitional question is evaluated through rational basis review. And that's Jana-Rock. I recognize this Court has never gone as far as that, but I don't think the Court needs to go as far as that because, again, I think the way that you would do the analysis is 1 to start by looking to the face of the statute, and if the face of the statute is engaged in a -- a conceded -- boy/girl sex classification is conceded to be legitimate, then, at that point, you kind of know which world you're operating in.
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 statement transitioning between counsel, with no emotional valence or substantive content. The brief 'Thank you' is standard courtroom courtesy.”
Mr. Chief Justice, and may it please the Court: So there have been a lot of different arguments made this morning, and so I think it might be helpful to just focus on what I think are the easiest way to resolve both of the claims in this case. On the equal protection claim, it's the arguments we discussed this morning about intermediate scrutiny doesn't work on this as-applied basis. So let me focus for the 1 Title IX claim. I think the simplest way to resolve the Title IX claim in this case is as follows: The regs expressly authorize sex-separated teams. The other side isn't challenging those regs. When those regs use the word "sex," they obviously use the word "sex" to mean biological sex in the reproductive biology sense. That's the ordinary meaning of the -- the term in 1972 and 1974. As a result, whether or not they are right that taking testosterone suppression eliminates any physical advantage doesn't matter because the regs define separation based on sex, based on biology, not based on circulating testosterone levels. So the difference that -- their claim that they've eliminated the difference just doesn't matter under the language of the regs, and that's enough to resolve the case.
So your argument as I understand it is that they're not similarly situated?
“The phrase 'as I understand it' signals the Justice is genuinely seeking to confirm their comprehension of the argument, making this primarily a clarifying question. There is mild engagement as the Justice actively processes and restates the legal argument, but no discernible skepticism or hostility.”
So that's an additional 1 argument you could make, is to say that even if you just focus on the language of the statute, the statute says discriminate on the basis of sex. Discrimination, as this Court has repeatedly recognized, including in Bostock, means treating one person worse than someone who is similarly situated. And, yes, we don't think a man taking performance-altering drugs is similarly situated to a woman, but you don't even have to reach that question because, under the regs, the question is the regs say you can separate based on sex. Everyone agrees that sex in those regs means biological sex. Therefore, the circulating testosterone levels are just legally irrelevant under the regs.
So why do you read -- you say you can separate the sexes. Why do you -- are you now taking the position in other cases that if states choose not to separate the sexes in the way you want, that they're violating Title IX?
“The Justice is probing the logical consistency of counsel's position by pushing on whether their interpretation of Title IX compels states to separate sexes, suggesting skepticism about the breadth or coherence of the argument. The 'are you now taking the position' framing challenges counsel to commit to a potentially troublesome implication of their stance.”
Well, so the argument -- so, again, we think that's a separate question and you should leave it separate. But the -- 1 the argument we're making in those cases is the statute and the regs allow separation based on sex because of the biological differences between men and women. If you purport to separate based on biological sex, but then you allow some biological males to play on the female team, you've undermined the justification for separating in the first place.
Because, normally, you can't separate. For -- if you take, for example, world history class, you can't have world history class for men and women. That's generally prohibited by the statute. The reason you could separate for sex for sports is the biological difference. And if you then undermine that, you undermine the justification for separate --
So we're not back always to the science, is there really a difference and a difference for this kind of person? If it's not clear the way you want it to be in terms of separating the sexes, I'm 1 wondering why it's clear for your attempt to force those states who are choosing not to do this. You're now saying you must.
“The Justice is challenging the petitioner's position by pointing out an internal inconsistency—if the science isn't clear enough to definitively separate sexes, why is it clear enough to compel states to act? This reflects strong skepticism about the logical coherence of the argument, with some concern about federalism implications of forcing states to comply.”
Again, that question is not presented in this case. And for this case, the factual dispute is irrelevant.
Mr. Mooppan, do you think --
“This is an incomplete utterance — merely the beginning of a question directed at counsel by name. There is no substantive content to classify beyond a procedural address, making it predominantly neutral with slight possibilities of clarifying or engagement intent.”
-- do you think that the Spending Clause should inform our analysis here?
“The Justice is inviting counsel to consider whether the Spending Clause framework should guide the analysis, which is an intellectually curious, exploratory question. This appears to be genuine engagement with the constitutional framework rather than skepticism or hostility, though it also has a clarifying dimension in seeking counsel's position on the applicable analytical lens.”
I don't think this Court should invoke the Spending Clause in this case.
For two reasons. One, we think that the statute and the regs clearly do not permit the claim.
And then the second is how the Spending Clause applies in the context of Title IX is, I think, a little more complicated than my friend suggested. It's not a clear statement requirement. I think, if you look at some of these 1 clear notice cases, cases like Jackson and Geyser, I don't think you would say that those statutes had a clear statement.
It's a clear notice requirement.
“This short declarative statement could be the Justice affirming or restating a legal principle, possibly in agreement with counsel's framing or to anchor the discussion. The tone suggests mild approval or clarification of the legal standard at issue, with some neutral procedural character given its brevity and lack of strong emotional valence.”
Right. But how that applies is a little tricky. And I think, in a case --
Why? I mean, your argument is that in -- in 1974 and 1960 -- sex meant biology, and that -- it's not clearly -- there's not clear notice otherwise. Why isn't that the end of it?
“The Justice is pressing the petitioner's counsel with a pointed 'Why?' challenge, probing why their own argument about biological sex and notice in 1974/1960 doesn't simply resolve the case in their favor. This is skeptical interrogation of the argument's internal logic, though it has some clarifying elements as the Justice restates the petitioner's own position.”
So I think the end of it is the statute clearly doesn't permit this claim. I'm just saying that I would be cautious about speaking about how the clear notice requirement applies because it is not a clear statement requirement and it's --
I understand that. You're -- you're -- you're not answering my question with respect.
“The Justice explicitly calls out counsel for not answering the question, which signals frustration and mild hostility. The repetition of 'you're' suggests agitation, and the direct accusation that counsel is evading the question indicates dissatisfaction bordering on hostility, though the phrase 'with respect' adds a slight moderating tone.”
How would -- so -- so I just want to --
If it's a clear 1 notice requirement at minimum and a voluntary agreement and sex at the time of the statute meant, as Bostock said, you know, there's good argument it's biology, why wouldn't -- why wouldn't West Virginia be within its rights to say we didn't have clear notice otherwise?
“The Justice is probing the petitioner's argument by suggesting West Virginia had a reasonable basis to claim lack of clear notice, implying skepticism toward the petitioner's position that the statute clearly covered their claim. The rhetorical 'why wouldn't' framing challenges the petitioner's logic by building a competing argument using Bostock and notice requirements.”
The scope of the clear notice requirement is a tricky question. If you look at this Court's cases, I suspect Your Honor --
What's tricky about that?
I suspect Your Honor would think a lot of the cases where this Court has found Title IX to apply, you would think there's not clear notice.
And so I think it's a tricky issue.
And I think it's a case that should be briefed. And I don't think it's an issue you need to resolve in this case.
Okay. And then -- and then, on the statute itself, it speaks of 1 discrimination in program or activity. And in Davis, we explained that that requires kind of a look at the whole of the institution because the definition of "program activity" is the whole institution, and so that's less individual-focused, it seems to me. Thoughts?
“The Justice is actively exploring how the statutory language and Davis precedent apply to the case, presenting a legal framework and inviting counsel's response with 'Thoughts?' — this reflects genuine intellectual engagement and some clarification-seeking rather than skepticism or hostility.”
Well, I -- I think that's true for the funding, but I don't think that's true in terms of how the discrimination provision works. If you discriminate or exclude in one part of the school, I don't think you can justify that by saying, well, all the rest of the school, we treat everyone fairly. I think those cases you're talking about, as long as you're receiving funding somewhere, the whole school's --
-- activities are covered.
Okay. And so it really boils down to the living accommodations provision, which Congress anticipated there would be sex-separated living accommodations being permissible; the Javits Amendment; and 1 then the regulations that are longstanding and, therefore, entitled to some serious consideration?
“The Justice is summarizing and consolidating the petitioner's argument into its core components, seeking confirmation that they have correctly understood the key legal pillars. This is primarily a clarifying gesture with some engagement, as the Justice synthesizes multiple points while appearing to frame them somewhat favorably by noting the regulations are 'longstanding and entitled to some serious consideration.'”
Well, no. So, you know, Your Honor asked why we run the similarly situated argument. Take, for example --
Don't -- don't -- don't bring that back up. (Laughter.)
“This is a humorous, lighthearted remark by a Justice that elicits laughter in the courtroom, suggesting a playful dismissal of a prior point rather than genuine hostility or skepticism. The laughter context indicates levity and informal engagement, making it largely neutral with slight engagement and approval tones.”
Well, locker rooms and showers aren't covered by any of the things you just identified, not the living facilities provision, not the Javits Amendment. None of those things covered locker rooms and showers. So, unless you use a similarly situated requirement, you would to have say that Title IX bans single-sex locker rooms and showers.
Well, okay, all right. If that's your view, then let's talk about the similarly situated. I guess I have to. What about the hypothetical I posed earlier that when it comes to high school performance, girls are sure a lot better than -- than boys and so we're only going to 1 have remedial classes for boys and girls aren't free to attend?
“The Justice is using a hypothetical about gender-based remedial classes to probe and test the petitioner's 'similarly situated' argument, showing both intellectual engagement and mild skepticism about where the logic leads. The 'Well, okay, all right' opener suggests some reluctant acceptance before pivoting to challenge the argument with an analogy.”
So I don't think those differences are based on inherent biological differences.
Well, let's say -- let's say I've got really good science. I mean, it's all about the science, right? I've got the science. You're fighting the hypothetical.
“The Justice is pressing a hypothetical ('let's say I've got really good science') while also chiding counsel for 'fighting the hypothetical,' which combines intellectual engagement with mild frustration and skepticism toward the petitioner's resistance to accept the posed scenario.”
I'm not fighting the hypothetical, Your Honor. I think what I would say, Your Honor, is that this Court has held in cases like VMI that, in general, classification on sex is impermissible because, in general, men and women are similarly situated. Where that's not true is for the sorts of real, enduring, obvious differences that this Court talked about in cases like VMI, the differences in reproductive biology. I don't think the sort of pseudo-science you're suggesting has been baked into that.
It's not pseudo 1 science.
“This short, assertive statement appears to be a Justice defending or affirming the legitimacy of some scientific evidence or methodology that was being questioned. It carries a mild defensive or corrective tone that could signal approval of the underlying science or mild hostility toward the characterization as 'pseudo-science,' making it difficult to classify definitively without more context.”
It's not pseudo science to say --
“This utterance appears to be a Justice defending or pushing back against a characterization of certain evidence or methodology as 'pseudo science,' suggesting either approval of the science in question or hostility toward the opposing framing. The defensive construction 'It's not...' indicates the Justice is either supporting the petitioner's position or interrupting to contest a claim, with moderate hostility toward the 'pseudo science' label.”
-- boys' brain development happens at a different stage than girls' does.
“The Justice appears to be raising a factual point about developmental differences between boys and girls, likely in the context of a case involving juvenile sentencing or gender distinctions. The statement seems to support or engage with an argument being made, possibly referencing neuroscientific evidence, suggesting intellectual engagement and some degree of approval or support for the underlying premise.”
Well, with all respect, I don't think there's any science anywhere that has suggested that these sort of intellectual differences are traceable to biological differences. And I don't think the statute should be read to --
Well, with respect, I don't think you're a Ph.D. in this stuff. And -- and neither -- I know I'm not. But I'm asking you to deal with the hypothetical.
“The Justice dismisses counsel's claim to expertise with 'with respect, I don't think you're a Ph.D. in this stuff,' which carries a mildly hostile, dismissive tone, while simultaneously pressing counsel to engage with a hypothetical, showing intellectual engagement. The blend of dismissiveness and insistence on addressing the hypothetical suggests a mix of hostility and engagement.”
And so I guess what I would say about that, Your Honor, is --
I mean, the statute says no discrimination on the basis of sex.
“The Justice is invoking the plain statutory text, which could be used to probe the petitioner's argument or to anchor an interpretive discussion. The 'I mean' framing suggests mild pushback or emphasis, indicating some skepticism toward the counsel's position, while also serving a clarifying/engagement function by pointing to the baseline statutory language.”
And you're saying, eh, it's okay when they're not similarly 1 situated.
“The 'eh' and informal phrasing suggest mild dismissiveness while paraphrasing the counsel's argument in a way that seems to trivialize it, indicating skepticism about the claim that differential treatment is acceptable when parties are not similarly situated. The tone implies the Justice finds this reasoning somewhat inadequate or oversimplified.”
And I'm giving you -- you're worried about locker rooms.
“The Justice appears to be summarizing or restating the petitioner's concern about locker rooms, possibly to clarify their argument or pivot to a hypothetical. The phrasing 'And I'm giving you' suggests the Justice is conceding or setting up a point for the counsel, while 'you're worried about locker rooms' slightly reduces the concern to a specific example, which could carry mild skepticism.”
Great. I appreciate that. I'm -- but I'm worried about that math remedial class or the chess club or whatever.
“The Justice begins with approval ('Great. I appreciate that.') acknowledging counsel's point, but quickly pivots to express genuine worry about edge cases (math remedial class, chess club), signaling concern about the implications or unintended consequences of the argument's scope.”
Right. And so, look, let me say -- put it this way: The general rule is you have to treat men and women the same, and --
I would have thought. That's what the statute says.
“The phrase 'I would have thought' combined with 'That's what the statute says' suggests mild skepticism or pushback toward the petitioner's interpretation, implying the Justice finds the statutory text clear and perhaps at odds with counsel's argument, though the tone could also carry a degree of affirmation of the plain text reading.”
And I think you have to be very careful about recognizing an exception. And so, when you recognize an exception for what's similarly situated, I think you should tether it to the sorts of long-recognized differences that would have been recognized at the time the statute was enacted. At the time the statute was enacted, no one would have doubted that it said it didn't require --
Oh, I think, at the time the statute was enacted, 1964, there are a 1 lot of people who thought boys are better at certain things and girls at others --
“The Justice appears to be intellectually engaging with the historical context of the 1964 statute, exploring the social attitudes of the time that may have informed legislative intent. The 'Oh, I think...' phrasing suggests active intellectual exploration rather than skepticism or hostility, making this primarily an engagement with the historical backdrop of the law.”
-- that we don't believe anymore.
“The phrase 'that we don't believe anymore' directly challenges the credibility or validity of the petitioner's argument, signaling strong doubt and disbelief. The dismissive tone suggests a combination of skepticism and mild hostility, as the Justice is explicitly rejecting a premise or claim being made.”
Not based on inherent biological differences.
I think that maybe in 1964 they did.
“The Justice appears to be partially agreeing with or affirming a historical point made by counsel, suggesting something was true in 1964, which carries an approving or supportive tone. The 'maybe' introduces slight hedging, indicating some engagement and exploration rather than full endorsement.”
And if they did, they didn't have any basis for it.
Whereas -- whereas, for -- for --
And I'm giving you a hypothetical where I have the science to prove it and you're saying it's still not good enough.
“The Justice is pressing back against counsel's position by highlighting what appears to be an unreasonably high evidentiary bar — even with scientific proof it's 'not good enough' — signaling strong skepticism and mild hostility toward the petitioner's argument. The framing ('I'm giving you a hypothetical') suggests deliberate intellectual pressure rather than pure curiosity.”
I guess, if you're asking me a hypothetical where the science existed in 1972 and everyone agreed with it, then it might be a different inquiry. That really is a hypothetical because there 1 wasn't --
Mr. Mooppan, do we have to -- I mean, I think these are very, very hard questions. I started with the math question before. I mean, I -- but do we have to -- because of the Javits Amendment, because the other side has conceded that Title IX permits sex-separated sports, can we avoid your whole --
“The Justice is exploring whether a narrower procedural or statutory path (via the Javits Amendment) might allow the Court to sidestep the harder constitutional questions, showing intellectual engagement and genuine inquiry rather than skepticism or hostility. The acknowledgment of 'very, very hard questions' reflects honest concern about difficulty, while the line of questioning is primarily clarifying and exploratory in nature.”
-- similarly situated argument that you're on? Because I don't really like it that much either.
“The Justice explicitly states dislike for the 'similarly situated' argument ('I don't really like it that much either'), signaling skepticism and mild hostility toward the argument. The phrasing 'either' suggests agreement with another Justice's skepticism, and the direct admission of not liking the argument reflects moderate hostility, though the conversational tone keeps it from being fully hostile.”
Absolutely. That's why, when I stood it up here, the first thing I said was the easiest way out of this case on this claim is to say that the regs permit sex separation. They don't dispute that sex --
Save locker rooms and all of that for a different day.
“This is largely a procedural/scope-limiting statement, directing counsel to set aside a particular argument for another time. It has mild concern undertones (the justice wants to avoid dealing with the locker room issue now) but is primarily a neutral, administrative direction about the boundaries of the current argument.”
Right. The only reason I went into it is I -- I was nervous that any sort of suggestion that there isn't a similarly situated requirement could lead to results that I don't think the Court would actually stand up 1 to, like locker rooms and showers. And so I think it's -- I have no problem if the Court doesn't take a position on --
Okay. And I -- and I'll say, I mean, I said I don't like the argument. At first blush, I don't like it. I'm not trying to prejudice --
“The Justice explicitly states dislike of the argument ('I don't like it') showing some skepticism and mild hostility, but immediately walks it back by clarifying they are 'not trying to prejudice,' suggesting an attempt at neutrality and fair engagement. The self-correcting nature of the statement introduces significant neutral and engagement elements.”
-- anyone making that argument later, but, I mean, I think it opens a huge can of worms that maybe we don't need to get into here because the Javits Amendment and the concessions here are --
“The phrase 'opens a huge can of worms' signals concern about broader implications of the argument, while the Justice simultaneously suggests the Court may not need to address those issues given the Javits Amendment and existing concessions, reflecting a pragmatic, narrowing instinct with moderate concern about overreach.”
That's right. As -- as long as you don't cut it off the other way, I think that's perfectly fine.
Thank you, counsel. Justice Thomas, anything further? Justice Alito? Justice Sotomayor? Justice Kagan?
“This is purely procedural/administrative language — thanking counsel and polling other justices for additional questions. There is no emotional valence or substantive content whatsoever.”
Mr. Mooppan, you -- you talked about you were -- you have -- are litigating this case the opposite way among 1 states that do not prohibit trans women and girls from participating in sports teams, is that correct?
“The Justice is seeking to confirm and clarify a factual point about the counsel's litigation position across different states, with no apparent hostility or strong sentiment. The hesitant phrasing ('you -- you talked about you were -- you have --') suggests genuine clarification-seeking rather than a rhetorical challenge.”
So -- and you said, and I appreciate this, that we should not address that question. Are there arguments that -- that do suggest what the answer is on that question that we should be careful about?
“The Justice acknowledges counsel's position positively ('I appreciate this') while probing for implications of leaving a question unaddressed. The question seeks to understand what signals or arguments exist on the unresolved issue, reflecting genuine intellectual engagement and some concern about inadvertently prejudging it.”
Or do you think that they're really self-contained boxes?
“The phrase 'self-contained boxes' suggests the Justice is probing the logical structure of the petitioner's argument, likely challenging whether their categories or distinctions are as neatly separable as claimed. The tone combines genuine inquiry with mild skepticism about the validity of the framework.”
I think they're generally distinct. And what I could say, confidently say, is the argument that I identified at the outset and with Justice Barrett just now, if you just say that the regs mean sex, sex doesn't mean circulating testosterone, and, therefore, you're not required to allow boys to play on girls' team regardless of their circulating testosterone level, that argument would not influence the outcome of those other cases one way or the other.
Are there any 1 arguments that would influence the outcome one way or the other?
“The Justice is genuinely seeking to understand whether First Amendment arguments could affect the outcome, indicating intellectual curiosity and a desire for clarification about the legal landscape. The open-ended nature of the question suggests exploratory engagement rather than skepticism or hostility.”
I don't think so. Maybe, if you engage in discussion about what -- how -- what the regs meant with respect to things like equal opportunity, that might be the sort of issue where it might have implications for the other case.
Justice Gorsuch? Justice Kavanaugh?
I just want to be crystal-clear about that. If we say sex in Title IX is biological sex and then we get to the next case, the California case or whatever it is, how would California still prevail if we've said that here?
“The Justice is probing the logical consequences of petitioner's argument by asking how a ruling in their favor would affect future cases, signaling doubt about whether the position is sustainable across different factual scenarios. The phrase 'crystal-clear' and the forward-looking hypothetical reveal skepticism about the broader implications of adopting petitioner's interpretation.”
I think the argument they -- the other side would make would be that the regs don't prohibit them from accommodating transgender individuals. Even though the regs permit separation based on sex, they also don't forbid accommodation of transgender individuals, is the argument they would make. 1 And they would say it doesn't matter that you're allowing some boys who are -- have a biological advantage to play on the girls' team.
What's the argument you're currently making in opposition to that?
“The question is straightforwardly asking the counsel to articulate their current argument, indicating a genuine desire to understand the petitioner's position rather than challenging or probing it. This is classic clarifying behavior aimed at establishing what argument is actually being made.”
That the justification for separating on the basis of sex is the biological difference, and so you're undermining the justification for the separation.
Right. And so we start with the separation. I think what you're saying is, once you separate boys' and girls' teams, which everyone does, and it may be even required in my view to have equal girls' teams, then California really doesn't have an argument if we say that sex in Title IX means biological sex, which may be okay. I just want to make sure I know what we're doing.
“The Justice is actively working through the logical framework of the argument, appearing to synthesize and restate the petitioner's position with some approval ('which may be okay'), while also seeking confirmation that they understand the argument correctly ('I just want to make sure I know what we're doing'). This reflects a mix of clarifying intent and engaged intellectual exploration with mild approval of the reasoning.”
Look, Your Honor, obviously, we don't think they can argue that, but I'm confident that California would stand up here and say that even if you ruled the way 1 I just urged, they should be able to argue the opposite by saying essentially that they're allowed to accommodate on the basis of gender identity even though the regs mean sex and sex means biological sex. That's the argument they would make. Whether that argument is right or wrong is for another case, but I don't think, if you adopt the argument I'm making here today, their hands are going to be tied.
Okay. And then, on this premise that has been conceded, I just want to make sure I understand your view, my understanding is that it's sex-separated sports teams so long as they're equal opportunity for girls and boys are perfectly constitutionally permissible. Is that not your understanding?
“The Justice is explicitly trying to confirm their understanding of a conceded premise, using phrases like 'I just want to make sure I understand your view' and 'Is that not your understanding?' — hallmarks of genuine clarification. There is mild skepticism in the careful framing, but the dominant intent is to pin down the precise scope of the concession.”
-- per the arguments in both cases.
I mean, it's conceded, but it's conceded because it's obvious.
“The Justice is pushing back on the significance of a concession, suggesting it holds little weight because the point is self-evident. This carries mild skepticism and slight hostility toward the petitioner's reliance on the concession, while also engaging intellectually with the underlying logic.”
Right, because there are obvious biological differences between men and women, and that's why you can have --
Well, the why people may debate, but it's -- but it's -- it's obvious --
“The Justice appears to be making an assertive point, acknowledging debate about reasons while insisting something is 'obvious,' suggesting engagement with the argument and possibly partial approval of a premise while steering toward a conclusion. The fragmented, trailing nature of the utterance suggests active thought in progress rather than clear hostility or skepticism.”
-- it's conceded. And so too Title IX, because of the Javits Amendment at least, even if not Title IX originally.
“The Justice appears to be building on or affirming a conceded point while extending the legal analysis to Title IX via the Javits Amendment. The tone is engaged and somewhat affirmative, as the Justice is connecting legal precedents rather than challenging the counsel's position.”
Well, I would say even without the Javits Amendment because, importantly, the Javits Amendment --
But let me just --
“This brief interruption phrase ('But let me just --') suggests a Justice cutting in to redirect or interject, which can signal mild hostility or an attempt to clarify/steer the conversation. The 'But' implies some mild pushback, though the truncated nature of the utterance makes it largely neutral/procedural without enough context to determine strong sentiment.”
-- is only intercollegiate. So --
And it's been interpreted in the regs, though, to go to high school --
“The Justice appears to be referencing how regulations have interpreted a provision, likely seeking to clarify or probe the scope of the regulation's application to high school attendance. The phrasing suggests genuine inquiry into the regulatory interpretation rather than challenge or hostility.”
-- and no one's ever challenge that part. That's the part. Okay.
“The utterance appears to be a procedural acknowledgment where the Justice is confirming an unchallenged point, with 'Okay' suggesting acceptance or noting a clarification has been resolved. The tone is largely neutral and administrative, with slight approval in recognizing an uncontested element.”
But -- but that also -- sex-separated sports teams are perfectly permissible under Title IX at least with the Javits Amendment and probably without, correct?
“The Justice is probing the petitioner's argument by pointing out that sex-separated sports teams are permissible under Title IX, seeking confirmation while also testing the logical boundaries of the argument. The 'but -- but' construction and the 'correct?' ending suggest both a clarifying intent and mild skepticism about how the petitioner's position reconciles with existing law.”
And that's conceded, but that's -- you know, it's conceded, again, because everyone accepts that, has accepted that for a long time, so long as the opportunities for boys and girls, men and women, are equal.
“The Justice acknowledges a concession but immediately qualifies it with a condition ('so long as opportunities are equal'), suggesting skepticism about whether the petitioner's argument truly satisfies that long-accepted standard. The repetition of 'it's conceded' signals the Justice is probing the limits and implications of the concession rather than simply accepting it.”
That's right. And I think what the other side in this case is trying to do is say that's fine, but they're being excluded. And the problem with that is they are not being excluded from being -- participating on the boys' team. They're choosing not to participate on the boys' team. Now, for understandable reasons, given their gender identity, but the state is not excluding them from the boys' team. And, Justice Sotomayor, this explains the confusion in the Fourth Circuit's opinion because I agree with you, it is very strange 1 that the Fourth Circuit said --
Okay. We've to go back. Sorry. You can -- well, finish that up.
“This is a purely procedural, administrative statement managing the flow of oral argument, with no substantive content or emotional valence whatsoever.”
The reason why the Fourth Circuit found that there was a viable Title IX claim, even though they said that there was a factual dispute, is because they bought into this notion that because the transgender boy doesn't want to play on the girls' team -- sorry, doesn't want to play on the boy's team and can't play on the girls' team, they're excluded, that's true even if they have a physical advantage. And so the court said we don't care about the physical advantage; it's still a Title IX violation. And that's clearly wrong. That's a misinterpretation of the statute. And the error in it is that they're not being excluded from the boys' team; they're choosing not to participate on the boys' team.
Sorry, one more. Bostock does not control here because? Fill in the blank.
“The 'fill in the blank' phrasing is a pointed, Socratic challenge asking counsel to affirmatively distinguish Bostock, suggesting the Justice is probing whether a meaningful distinction exists. The apologetic opener ('Sorry, one more') keeps the tone relatively collegial, but the directness of the question implies some skepticism about whether counsel can adequately differentiate their case from controlling precedent.”
Because the law doesn't classify on the basis of transgender status. It classifies on the basis of sex, biological sex. Just like in Skrmetti, the law there classified on the basis of age and medical treatment, here, the law classifies on the basis of biological sex. The person's gender identity is wholly irrelevant to how the law applies.
Justice Barrett? Justice Jackson?
But -- but they are being prevented from playing on the team that matches their gender identity, correct?
“The 'But -- but' construction signals some pushback or challenge to the petitioner's framing, suggesting mild skepticism, while the 'correct?' at the end seeks confirmation of a factual point, giving it a clarifying quality. The Justice appears to be pressing on the practical impact of the policy on transgender students, which carries some concern about consequences.”
That's the effect. So let me use your example from earlier.
You said there is a cisgender woman, she could play on the team she wants.
There is a boy who identifies as a girl, he can't play on the team 1 he wants. Take that same boy and switch his gender identity but say he still wanted to play on the girls' team. Say he was a very unathletic boy. He, likewise, couldn't play on the team. So it's not the gender identity that's keeping him off the girls' team. It's his biological sex. His gender identity is wholly irrelevant to it. Now I agree with you there's a very significant disparate impact on transgender individuals by this law because they are the boys --
But I wonder if --
“This is an incomplete utterance ('But I wonder if --') suggesting the Justice was interrupted or trailed off mid-thought. The word 'But' signals mild pushback or skepticism, while 'I wonder if' suggests exploratory engagement or clarification rather than strong hostility, making engagement and clarifying the most likely sentiments.”
-- who are most likely to want to play on.
Have we said that Title IX never covers that kind of disparate impact in terms of its discriminatory effect?
“The Justice is probing whether the Court has definitively ruled on Title IX's coverage of disparate impact claims, which is a clarifying question about precedent while also showing some intellectual engagement with the legal issue. The phrasing 'Have we said' suggests genuine inquiry into existing doctrine rather than overt skepticism or hostility.”
Oh, well, it certainly doesn't cover disparate -- first of all, I don't think Title IX covers disparate impact, period, because it uses --
But, in terms of its discriminatory effect, I'm just trying to understand it.
“The explicit statement 'I'm just trying to understand it' strongly signals a clarifying intent, with the Justice genuinely seeking to comprehend how discriminatory effect functions in this context. The mild 'But' at the start introduces a slight pivot or probing element, adding minimal skepticism.”
Is there something to this notion that some -- that differential treatment in effect in this way could be something that Title IX cares about?
“The Justice is openly exploring whether differential treatment falls within Title IX's scope, framing it as an intellectual inquiry ('Is there something to this notion') rather than challenging or attacking a position. The tentative phrasing signals genuine curiosity and engagement with the legal theory rather than skepticism or concern.”
No. A, I don't think Title IX covers disparate impact even on the basis of sex. It certainly doesn't cover disparate impact on the basis of gender identity.
Thank you, counsel. Mr. Block. ORAL ARGUMENT OF JOSHUA A. BLOCK ON BEHALF OF THE RESPONDENT
“This is purely procedural/administrative language, transitioning between counsel during oral argument. It contains no emotional valence, questioning, or evaluative content whatsoever.”
Mr. Chief Justice, and may it please the Court: B.P.J. signed up for school sports because she was an 11-year-old girl starting a new middle school who wanted to meet people, make new friends, and be part of a team. West Virginia argues that to protect these opportunities for cisgender girls, it has to deny them to B.P.J. 1 But Title IX and the Equal Protection Clause protect everyone. And if the evidence shows there are no relevant physiological differences between B.P.J. and other girls, then there's no basis to exclude her. In thinking through the Title IX claim in particular, it's important to distinguish -- excuse me -- distinguish between how Title IX operates as a general matter and how it operates outside the context of athletics. And I -- I'm glad that we're doing that this morning. Instead of focusing on athletics, West Virginia argues more generally that this Court's reasoning in Bostock does not apply to Title IX. To distinguish Title VII from Title IX, West Virginia argues that Title IX protects groups instead of individuals and applies only when sex is the sole cause of adverse treatment. That approach takes a wrecking ball to the text of Title IX and the structure of this Court's anti-discrimination precedents. It would dilute Title IX's protections for everyone, not just transgender students and not 1 just in the context of sports. West Virginia's law treats B.P.J. differently from other girls on the basis of sex and it treats her worse in a way that harms her. Outside the context of athletics, that's all B.P.J. would need to establish a Title IX violation. But the Javits Amendment provides extra breathing room for reasonable regulations that take into account sex-based differences in athletics to provide equal athletic opportunity for everyone. West Virginia's exclusion of B.P.J. does not fall within that framework. Unlike the exclusion of -- of a cisgender boy, excluding B.P.J. doesn't advance any interest in ensuring overall fairness and safety. And unlike the case of a cisgender boy, excluding B.P.J. from the girls' teams excludes her from all athletic opportunity while stigmatizing and separating her from her peers. I welcome the Court's questions.
Doesn't your claim ultimately depend on the existence of sex-segregated sports?
“The question probes a foundational premise of the respondent's argument, suggesting skepticism about whether the claim can stand independently of sex-segregated sports. However, it also has a clarifying dimension, as it may be genuinely seeking to understand the logical structure and scope of the argument.”
No, I don't think so, Your Honor. I think this is similar to Morales-Santana, where the claim was an equal protection claim.
Well, I mean, the -- let's say there were no Title IX requirement for sex-segregated sports.
“The Justice is positing a hypothetical ('let's say') to explore the logical foundations of the argument, stripping away one variable to test the underlying reasoning. This is classic intellectual engagement, probing the argument's structure without apparent hostility or strong skepticism.”
Well, if there were no Title IX requirement and -- well, I don't think Title IX requires sex-segregated sports.
But, if there were no Title IX and all the sports were co-ed, then she wouldn't be subjected to disparate treatment on the basis of sex. So I think the claim's the discrimination, and it's perfectly possible to have it --
So doesn't that suggest that your subcategory of the sex -- of -- of the relevant class of female athletes? Isn't that your point?
“The Justice appears to be both seeking clarification on the respondent's argument about subcategories of female athletes and probing whether they've correctly understood the logical structure of the claim. The phrasing 'Isn't that your point?' suggests a mix of clarifying the argument and mildly testing its coherence.”
Yes. Well, for the equal protection claim --
Well, but you're not -- my point is that you're challenging a 1 category that does not exist in the statute but is dependent upon the existence of a category in the statute that you're not challenging.
“The Justice is pointing out a logical inconsistency in the respondent's argument — that they are challenging a category that doesn't exist in the statute while not challenging the statutory category upon which it depends. This is a classic skeptical probe highlighting a weakness or contradiction in the argument's internal logic.”
Well, I don't -- I wouldn't put it that way. I would put it the way as there's a classification that we think is valid as applied to most people but is invalid as applied to a discrete subset of those people. But I don't think the success of that equal protection claim hinges as an a priori matter on the existence of girls' teams. There are lots of ways to remedy an equal protection violation.
But I think, given the way you phrased it, the question becomes a little different because what it seems to me you have to establish is the basis for requiring an exception to the classification. You're not challenging the idea of having boys and girls separate sports. You're saying that you cannot exclude transgender girls from the definition of girls. And it's an entirely different question than the equal 1 protection question.
“The Justice is actively reframing and refining the respondent's argument, probing whether the legal question has been properly characterized. This combination of intellectual engagement and implicit skepticism about how the argument is being framed suggests the Justice is both clarifying the precise legal question and subtly challenging whether the counsel's framing is correct.”
I don't think we're arguing for an exception. I think we're bringing exactly the same argument in Caban. In Caban, the plaintiff wasn't saying this is valid for everyone, but I want an exception from it. In Caban, the plaintiff was saying this is valid for other fathers, but it's not valid as applies to me. So I just think it's a -- it's an as-applied equal protection claim. I understand the Court might decide those claims don't exist, but I don't think it's a claim asking for an exception. It's a claim saying it's, as applied to them, it's okay. As applied to me, it's not.
Counsel, how do you get to a Title IX violation? I know exactly how you get to an equal protection violation, okay? When the reg -- if you accept that the regulation does by its own terms permit sex-based separate sports, does permit schools to do this, how -- what in Title IX explicitly or even logically says that you have 1 to give transgender --
“The Justice is sharply probing the legal basis for a Title IX violation, contrasting it with an equal protection claim they clearly understand, and questioning whether the statute explicitly or logically supports the respondent's position. The rhetorical framing ('I know exactly how you get to...') and pointed questioning signal strong skepticism toward the Title IX argument, with some clarifying intent to understand the legal theory.”
Thank you. I appreciate --
-- girls the same opportunity? Because the regulation said -- it's not just a statute. It's the regulation said you can create separate-sex teams.
“The Justice appears to be probing the respondent's argument by pointing to the specific regulatory language permitting separate-sex teams, suggesting some skepticism about whether the arrangement truly provides equal opportunity. The mid-sentence interruption and pointed question about 'the same opportunity' signals both a challenge to the argument and a clarifying inquiry about the regulatory framework.”
No, thank you. I take the point. I think there's always been a tension between the underlying text of Title IX, which protects individuals, not groups, and the regulations, which are authorized by the Javits Amendment and have special leeway to make some group-based measurements. But, if you look at the rationale for the regulations, HEW, when it issued the regulations, said that we think that our group-based method, which otherwise would have been completely impermissible for Title IX, adequately protects the rights of individuals because, if boys and girls as groups are being given equal sets of overall opportunity, then every individual in the group also has a set of equal opportunity to choose from, and --
Yeah, I think that's the problem. You know, you're -- you're absolutely right to worry about the wrecking ball, but I think we've kind of taken a wrecking ball to that. There's no "solely" in this statute, all right? We're talking about individuals. But Javits changed Title IX and it said, you know, sports are different. And we've got these regulations that have been out there for 50-plus years. And, you know, normally, Skidmore kind of comes in there. And forget about the Spending Clause, I guess, but maybe I'll ask you about that too. Why doesn't that make this case very different than Title VII?
“The Justice is actively engaging with the respondent's argument, acknowledging some merit ('you're absolutely right to worry about the wrecking ball') while simultaneously probing weaknesses in their position by pointing to statutory differences (no 'solely', Javits amendment, Title IX regulations, Skidmore deference). The tone is intellectually engaged and somewhat skeptical, pushing the respondent to distinguish their case from Title VII precedent.”
So I completely agree the Javits Amendment is what makes this different from Title VII. And I'm very happy with however this decision comes out to have a decision that's focused specifically on the unique context of athletics as opposed to these broad arguments about Bostock applying to Title IX as a general matter. But I guess what I'd say is the 1 regulations still require equal athletic opportunity. It's not a complete exception for sex-separated teams.
Yeah, but Javits says it can be reasonable.
“The 'Yeah, but...' construction is a classic rebuttal signal, indicating the Justice is pushing back on the respondent's argument by invoking Javits as a counterauthority. The informal 'Yeah' followed by a contradiction shows skepticism toward the respondent's position with mild adversarial tone.”
And do you dispute that the HEW regulation that has been on the books for 50-plus years is reasonable?
“The question challenges the respondent to dispute the reasonableness of a long-standing regulation, implying that 50+ years on the books lends it strong legitimacy. The framing 'do you dispute' carries an implicit skeptical challenge to any argument against the regulation, though it also seeks clarification of the respondent's position.”
I think it is absolutely reasonable as applied to cisgender students. I think that as applied to transgender students, instead of providing them equal overall opportunity, it's a complete exclusion from the program. And so that -- so that's our argument, that it's reasonable as applied in the context of cisgender people, but interpreting the regulations to authorize this sort of categorical exclusion that doesn't give B.P.J. an equal set of opportunities to choose from would be an unreasonable way to implement Title IX.
Okay. Got you. Thank you.
“This is a brief, procedural acknowledgment with no emotional valence. The phrases 'Okay,' 'Got you,' and 'Thank you' are standard courtroom demeanor signals indicating the Justice has received the information they needed, with no indication of skepticism, concern, or strong approval.”
It's unreasonable as 1 to all transgender students?
“The Justice is challenging the respondent's position by pressing on the scope of the claim—questioning whether the policy is unreasonable as applied to all transgender students broadly, suggesting doubt about the breadth or logic of the argument. The terse, pointed phrasing signals skeptical probing rather than genuine clarification.”
No. I think it's -- I think it's a combination. I think -- so reasonable -- a reasonableness test, I think that requires some sort of mend -- excuse me -- ends-means-fit, and I think that that exists when it comes to cisgender students. I think what makes B.P.J.'s case differently from a cisgender student is two things. First, she doesn't have any of the physiological distinctions that justify the sex separation in the first place, and, second of all, the harm to her is of a material different kind. It's not -- it's one thing to say we're not going to let boys play volleyball because they have all these other sports to choose from or we're not going to let girls play football because they have all these other sports to choose from. It's another thing to say you don't get any sports.
But, in that argument, does it matter whether B.P.J. has a competitive advantage or not?
“The question probes the logical structure of the respondent's argument by asking whether a specific factual element (competitive advantage) is legally relevant, suggesting both skepticism about the argument's foundation and a genuine attempt to clarify the scope of the claim. The 'But' opener signals some pushback on the prior reasoning.”
Yes, we think it does. And I appreciate the opportunity to clarify 1 that we don't have any objection to vacating the grant of summary judgment in our favor. We did our best to defend the judgment below, but our argument before the Fourth Circuit for summary judgment was that there wasn't a genuine disputed fact about whether she had an advantage. The Fourth Circuit sua sponte granted summary judgment to us based on the theory that that fact wasn't material. That's never been our argument in this case.
So your argument depends on the -- depends on her not having a competitive advantage because she's not been through male puberty?
“The Justice is pinpointing what they see as a critical dependency in the respondent's argument, suggesting potential doubt about whether that premise holds. The phrasing 'your argument depends on' signals scrutiny of a potentially vulnerable logical foundation, though it also carries a clarifying dimension as the Justice is confirming their understanding of the argument's core premise.”
That -- that -- and not just not been through male puberty but also gone through a female hormonal puberty --
-- with all the physiological changes accompanying it.
But the argument goes away if -- if that -- if those facts go away?
“The Justice is probing whether the respondent's argument depends entirely on specific facts, suggesting skepticism about the robustness or breadth of the argument. The phrasing 'the argument goes away' challenges the strength of the position, though the repetition ('if -- if that -- if those facts') also suggests some genuine clarification-seeking.”
Yes, yes, absolutely, which is -- at the beginning of the argument, 1 Justice Kagan, you talked about this could be resolved based on a legal principle or based on the facts. And I really do want to make a pitch for resolving it based on the facts because, look, if they're right about the facts, then we should lose. And the irony is that in order to win summary judgment in this posture when there's a disputed question of fact below is they can only win in this posture if we're right about the facts and there aren't any advantages. And I -- I -- I don't think there's any need at this juncture for this Court to issue that broad a holding when, according to them, once the evidence comes in below, we're not going to get past summary judgment. I mean --
You're not suggesting that we decide the factual question?
“The question challenges counsel to clarify the scope of what they're asking the Court to do, with skeptical undertones suggesting the Justice doubts the Court should be deciding factual matters. It also serves as a clarifying question to pin down the precise nature of the argument being made.”
No, no, no. I'm -- I'm suggesting that the case be allowed to be decided on remand on the factual question, which I think, like, this is an important issue, it affects -- it may affect the whole country, and the Court wants to get it right. And I don't think the best way to get 1 it right is to rely on, you know, cherry-picked studies or assertions in amicus briefs. I think the way to get it right is to let all the facts they're trying to put in the record actually be put in the record. And then we'll have the facts in front of us. And maybe they'll make the issue go away. But I think it's unnecessary to, you know, intervene at this instance with a sweeping legal conclusion to something that might actually be a narrow factual dispute.
Counsel, can you explain whether or why your theory would allow a cisgender boy who just couldn't make the boys' team -- I mean, he doesn't have an equal opportunity, he can't play, there's no team he can play on. And let's say that his athletic ability can be shown that he has no competitive advantage and he wants to be on the girls' team. Why can't he on your theory?
“The Justice is probing the logical limits of respondent's theory by constructing a hypothetical that exposes a potential inconsistency or overreach — a cisgender boy seeking to join a girls' team on equal-opportunity grounds. This combines skeptical pressure on the argument's coherence with genuine intellectual engagement, testing whether the theory can be consistently applied without producing absurd or unintended results.”
No, I appreciate the question. I think -- I just want to be clear about what we think the -- the justification for the separate teams is. 1 We don't think the boys' team is for better athletes and you have a backup team for athletes that aren't as good. I think the purpose of the teams is to control for the variable of sex-based advantages so that talented women athletes have all the same opportunities as talented male athletes. But also, untalented male athletes should be compared to untalented women athletes. So the -- they're not being separated based on how good you are, right? The whole point is to allow female athletes to have all the same opportunities as men by controlling for the sex-based differential that comes through puberty. And so that's why I don't think that the claim is the same there. I think that's what -- what's happened here is, by virtue of her medical care, B.P.J. has already effectively controlled for those sex-based advantages, and so she is completely in the position that she would have been if her birth-assigned sex had been female. As opposed to a cisgender boy who's just not very good at sports, and if his 1 birth-assigned sex were female, maybe he'd be even worse, I don't know, but -- but, again, the purpose is to control for the variable with sex to provide equality, not to have a good team and a team for people that can't cut it. Now I'm happy to address --
Can I ask a question on the law --
“This is a simple request to pose a legal question, indicating the Justice wants to seek clarification or explore a legal issue. The phrasing 'Can I ask a question on the law' is a polite, procedural opening with no discernible emotional valence beyond a desire to inquire.”
-- on Title IX? I mean, I hate -- hate that a kid who wants to play sports might not be able to play sports. I hate that. But we have -- it's kind of a zero-sum game for a lot of teams. And someone who tries out and makes it, who is a transgender girl, will bump from the starting lineup, from playing time, from the team, from the all league -- and those things matter to people big time -- will bump someone else. And so one way to resolve it, as you say, is the facts, try to figure out is there really a competitive advantage. I think we're going to get a lot of scientific uncertainty about that, a lot of debate about that, a lot of different district courts. 1 The other way on the law, one way on the law is, okay, well, sex in Title IX and in Javits meant biological sex, and it's up to Congress to adjust that going forward if they want, given, as you say and your co-counsel said earlier, you know, people are learning more about this and maybe there really is no advantage. Well, if that's true, and some states are operating under that basis, that's -- that's -- that's the way to go. But, for now at least, the law says biological sex. And I think we have to recognize on both sides the zero sum. It's not like, oh, just add another person to the team. That's not how sports works. It's -- it's someone else is going to get disadvantaged. So I just want you to address that.
“The Justice expresses genuine concern about the real-world implications for both transgender athletes and those they might displace, acknowledging the zero-sum nature of competitive sports. While there is some skepticism toward the respondent's position (suggesting the law currently means 'biological sex'), the dominant tone is one of wrestling with difficult policy and legal tensions, reflecting concern about fairness and the complexity of the issue rather than outright hostility.”
I'm -- I'm happy to, and I guess I have three answers. And the first is I -- I completely understand that many parts of sports are zero sum. But this law isn't limited to zero-sum opportunities. So B.P.J. played on the cross-country team, where there were no cuts. 1 She came in near the back. It wasn't --
Well, but -- I'm sorry to interrupt, but you wouldn't have a different rule if she was finishing in the top 5.
“The Justice interrupts (signaling some level of disagreement or unacceptability) while probing whether the rule being argued is internally consistent—suggesting the same rule would apply regardless of placement. The apologetic framing softens the interruption, making this more skeptical than hostile, with elements of clarification and engagement as the Justice tests the logical limits of the argument.”
No, no, no, but it wasn't a zero sum.
Or if they had cuts.
“This brief fragment appears to be the Justice adding to a hypothetical scenario ('or if they had cuts'), suggesting intellectual exploration of edge cases. The phrasing indicates engagement with a hypothetical being constructed, possibly extending an example to probe the boundaries of the argument.”
But what I'm saying is there -- there are --
In this particular case, but, usually, with teams -- I don't mean to -- I just don't want to get out of that. Usually, with teams, there are cuts --
“The Justice appears to be exploring a point about how teams typically operate (with cuts), distinguishing the particular case from the general norm. The self-correcting, exploratory language ('I don't mean to -- I just don't want to get out of that') suggests genuine intellectual engagement and clarification rather than hostility or strong skepticism.”
-- which mean a lot to people. There are starting lineups. Those mean a lot to people. There's who makes -- who gets a college recruit. That means a lot to people.
“The Justice is exploring the real-world significance and meaning of sports statistics/information to people, suggesting intellectual engagement with the stakes involved. There's a mild concern undertone about the implications of the case for things people care deeply about, but primarily this reads as engaged exploration of why the subject matter matters.”
Yes. Yes, yes. I -- I just want to say that there still are some areas where there are win/win solutions. I think even being able to be on practices with 1 the team consistent with your gender identity instead of your sex assigned at birth can be enormously important. So I -- I -- I think some -- some scenarios are zero sum, but not everything having to do with sports is. And I do think that one of the vices of this law is that it sweeps so broadly that even win/win solutions are taken off the table. In terms of aspects where it's zero sum, you know, no one likes to lose. No one likes to not make the team. And people often don't make the team. Cisgender girls don't make the team when competing against other cisgender girls all the time. And the question I think is whether it's an unfair advantage to not make the team because a transgender girl participated. And if there is no sex-based biological distinction there, then I think it's an unfortunate situation, but I think it's the unfortunate situation that comes with having a zero-sum game, not inherent unfairness. Then the third thing is I think however the Court resolves this case, I -- I 1 really urge the Court not to do it based on a definition-of-sex argument. We are not disputing in this case that West Virginia can have its definition of sex. Our argument is it's using this definition to inflict discrimination and deny equal athletic opportunity. But we are not saying their definition of sex is wrong. However, I don't think it follows that Title IX created some national definition of sex that preempted a state's ability to say, you know, actually, we are most concerned about discrimination that happens through gender roles. We think --
Can I ask you something? That's a very important point here, I think, for what happens in the future, what you just said. Do you think sex and Title IX can reasonably be interpreted to allow different states to take different understandings of that in their sports leagues?
“The Justice signals the question is 'very important' for future implications, indicating genuine engagement with the broader consequences of the legal interpretation. The question probes whether Title IX allows state-by-state variation, reflecting both intellectual exploration of the statutory interpretation and some concern about uniformity and downstream effects.”
And why is that? That's real important, I think, going forward.
“The Justice is asking 'why' and signaling that the answer matters for future implications ('going forward'), suggesting genuine curiosity and intellectual engagement rather than skepticism or hostility. The phrase 'that's real important' adds a note of approval or emphasis, indicating the Justice finds the point substantively significant.”
Right. Because I don't think the purpose of Title IX is to have an accurate definition of sex. I think the purpose is to make sure that sex isn't being used to discriminate by denying opportunities, just -- just as I don't think we need to -- to define race in order to enforce Title VI. So I think I wouldn't look to whether or not it's accurate to classify, you know, B.P.J. as -- as male or female. I think the question is, is she being denied an opportunity because of that classification? But, obviously, sex can mean more than just the --
So, if we didn't want to prevent a different state from making a different choice from West Virginia, what should we not say or what should we say to prevent that from happening?
“The Justice is exploring the precise boundaries of a ruling, asking counsel to help craft language that would preserve state autonomy — this reflects engaged intellectual curiosity about the implications of the decision combined with concern about unintended precedential effects on other states' choices.”
Well, I wrote down the answer to that when you asked Mr. Mooppan. I have two things. I wrote: Don't give definition of sex. And I also said I wouldn't decide this by assuming that Title IX provides a right to single-sex teams. 1 In the regulations, single-sex teams are optional. They're not mandatory. And the -- in addition to the -- we've been talking about the regulations, but on the ground, the way this plays out in practice is you have a 1979 policy statement, a sub-regulatory document, that has a complicated test for determining when a sex-separated team is or is not required. And so I think that both because I -- I think saying there's a right to a sex-separated team, like, would predetermine some of the questions in that other case, that's so I -- that's one reason why I don't think you should do that. But, second, I think the more the Court gets into questions that are handled in this -- these complex regulatory documents, I think the more I'd be worried about this Court accidentally saying something about how Title IX works that doesn't actually map onto how it is actually playing out on the ground.
Title IX prohibits discrimination on the basis of sex. It's a statutory term. It must mean something. 1 You're arguing that, here, there's discrimination on the basis of sex. And how can we decide that question without knowing what sex means in Title IX? I mean, it could mean biological sex. It could mean gender identity. It could mean whatever a state wants to define it to mean, but it has to mean something. How can we decide that without knowing what the statutory term means?
“The Justice is pressing the respondent on a foundational definitional gap in their argument — 'it has to mean something, how can we decide without knowing what it means?' — which signals strong skepticism about proceeding without resolving the statutory meaning of 'sex' in Title IX. There is also an element of genuine intellectual engagement as the Justice enumerates multiple possible meanings, exploring the interpretive challenge.”
Well, I -- I think there are a whole range of sex-based characteristics that can give rise to discrimination. I think, if someone said I'm going to discriminate against anyone who acts in a feminine manner, like anyone with limp wrists, I don't care who they are, but I'm going to discriminate against them, like, I think that would be sex discrimination. It would be sort of gender presentation. I would -- but I wouldn't say that's not covered by Title IX. And so I just -- I -- I'm not saying that biological differences aren't part of sex, but I'm saying that sex also has broader connotations and there's no reason to keep that 1 out of the statute. And I'm certainly not saying that sex means gender identity. I just want to be very clear about that. I don't think that, you know, just as -- I would say this. Our argument is that there's a group of people who are assigned male at birth who -- for whom being placed on the boys' team is harmful, right? We happen to have a word for those people. It is transgender girls, but I don't think that means that we're elevating gender identity to be the new definition of sex. Just as in Phillips versus Martin Marietta, there's a subset of women, you know, who are harmed by the policy, not all women, but there's a subset of women who had young children, and there's a name for them. It's mothers, but that doesn't mean that we're replacing the word "sex" with mothers. I think this issue --
How -- how do you deal -- how -- how do you respond to or deal with the other side's characterization of that harm as just the disparate impact of this 1 regulation, that really, you know, it's not discrimination, I think they're saying, but it is just the downstream effect of the application of the classification that the Javits Amendment allows and that's just the way it goes?
“The Justice is pressing the respondent to address the opposing side's framing of the harm as mere disparate impact rather than discrimination, which reflects skeptical probing of the respondent's position. However, the question also has a clarifying dimension as the Justice is summarizing and testing whether they correctly understand the other side's characterization before expecting a response.”
Yeah. So -- so I guess I would say this. I think this Court has dealt -- dealt with the issue of things like constructive denials and constructive discharges in a variety of contexts. And under Title IX, an outright denial isn't required. Davis says a constructive denial also counts. And whenever there's a question of constructive denials, the Court applies a standard that's reasonable person in the plaintiff's position under all the circumstances. And they use that for constructive denials, you've used that for retaliation claims. And if you look at Burlington versus White, I think it's very on point here because one of the points that Burlington versus White said is that there's some actions that aren't going to be harmful to most people, but they 1 might be harmful to some people. So Burlington -- again, Burlington versus White used a mother with young children might find a change in her work schedule to be incredibly harmful, right? That doesn't mean that, you know, we're arguing that, you know, this is a disparate impact classification on people who have young children. It's a sex classification. The sex classification is just harming some people and not harming other people. So that's how we would view it. I don't think it's -- I think this is a facial class -- sex classification any way you cut it. And some --
Well, I -- I'm sorry. You don't think we should have an operating definition of sex in Title IX? Now I understand the idea that -- well, the question then becomes not whether or not there's discrimination on the basis of sex but whether there's discrimination on the basis of whatever characteristic you think should be included in the definition of sex. Now, when it's used as a statutory 1 term, I'm not sure you have that kind of flexibility. The question then would be instead what does Congress thinks -- think the words -- word means?
“The Justice is pushing back on the respondent's apparent resistance to a fixed statutory definition of 'sex,' probing the logical weakness of their position by arguing that Congress's original intent should govern the term's meaning rather than flexible modern interpretations. The 'I'm sorry' signals mild exasperation, and the rhetorical framing ('You don't think we should have...') reflects skepticism, though the latter part shifts toward genuine engagement with the interpretive question.”
Well, Your Honor, I guess I'd say I think Congress prohibited discrimination based on sex. I don't think --
Then -- I'm sorry, go ahead.
“This is a purely procedural, courteous utterance where the Justice defers to counsel to continue speaking. It has no substantive content and carries no emotional valence.”
Yeah. And so -- so I don't think that just as I don't think Congress adopted a definition of -- of race, you know, in Title VI in order to prohibit discrimination on the basis of race. I think -- I think I'm not trying to police the accuracy of the terminology that's being used. All I'm saying is that what's being prohibited is using this classification to discriminate, not --
So you -- well, but without really knowing what the distinction is?
“The Justice is pushing back on counsel's position by highlighting that they are proceeding without clarity on a key distinction, suggesting doubt about the argument's foundation. The 'but' and fragmentary structure signal skeptical probing rather than pure clarification.”
Well, I -- I -- you know, I think -- I don't think the examples I've given about sex-based characteristics, like, 1 fall outside the common understanding of things that are related to sex.
Well, related to sex. I -- I guess what you're saying is then we -- we do have to accept for your position that we're not dealing -- when -- when Congress says sex, we're not dealing with biological sex, but we're dealing with other characteristics that people might associate with sex?
“The Justice is probing the logical implications of counsel's argument about the meaning of 'sex' in the statute, essentially pressing counsel to accept a premise ('we do have to accept') that could weaken their position. The phrasing 'I guess what you're saying' suggests the Justice is both seeking clarification and subtly questioning whether counsel's interpretation departs from the ordinary biological meaning of sex.”
No, no, no. I think, for this case, you can -- you can accept for the sake of this case that -- that we're talking about what they've termed to be biological sex. I think that resolves this case. I was just talking about in addressing other potential cases --
So we don't have to say anything about the matter. You're willing for us to proceed on that assumption?
“The Justice is seeking confirmation from counsel about whether they can proceed on a particular assumption without addressing the matter further. This is primarily a clarifying question seeking procedural/substantive agreement, with mild engagement as the Justice explores how to handle the issue.”
Exactly. Just like in Bostock, I think you can proceed for argument's sake without taking a definitive position here because it might have downstream consequences in other cases that even the United States 1 doesn't want the Court to prejudge here. Now I -- I would like to say one quick thing on Justice Barrett's reference to separate classrooms. I mean, it is true, and you see all these litigated cases about theories that there's different brain sexes for women versus boys and that's why you need separate classrooms. I don't think -- I think the instinct was completely correct that you can have a lot of scientific justifications for discrimination. That doesn't mean that the discrimination is allowed or immune from scrutiny. And, in -- in fact, some of the states -- some of the studies that are cited in the amicus briefs say boys are naturally more aggressive, right, and -- and favor competition more because that's in their DNA. So I -- I do think, even in these studies, the idea that you're completely, you know, just basing it on pure biology and not on other generalizations doesn't quite hold up. I'd also -- I -- I'm -- I -- I -- to the extent that we're -- we want to go back to 1 Caban, I -- I do want to just make a couple quick things clear. Caban was not a facial challenge. It -- it wasn't. And neither was -- some of the First Amendment cases they were talking about weren't equal protection First Amendment cases. They were commercial speech cases. Michael M. also wasn't a facial challenge. He wasn't saying: I should have an exception because a prepubertal girl was involved. He was saying the statute is overbroad because, in theory, it could apply to a prepubertal girl. So I -- I do think that some of the characterization of the cases doesn't hold up to our reading of them.
So how does a Caban-type as-applied intermediate scrutiny analysis work in your view? It -- it is an under-developed area of the law. Is it enough for one person to show that she bucks the trend or -- or not?
“The Justice is genuinely seeking to understand how the legal standard would operate in practice, acknowledging it's 'under-developed' — this signals both clarifying intent and intellectual engagement. The probing follow-up question ('Is it enough for one person to show she bucks the trend?') introduces mild skepticism about the workability of the standard.”
Yeah. I -- I don't think so. I think -- I -- I agree with my co-counsel that I think we're talking about a -- a discrete, like, definable group that will 1 reliably not serve the government's interest. And I don't think Nguyen is a counterpoint to that because the whole point in Nguyen was that men who were not similarly situated had an opportunity to demonstrate that. There were three very easy methods of transmitting citizenship and Nguyen emphasized that in order to do it, that those were minimal burdens. And that is the key fact in Nguyen that distinguishes it from this case. This is a categorical ban. And Nguyen and Caban and all the Court's cases distinguish between categorical bans and more narrow procedural requirements that do treat men and women differently but still provide the opportunity for demonstrating that you're not similarly situated.
I -- I think a hard question that Ms. Hartnett got, maybe the hardest question on these -- on these lines was, if we recognize these sorts of as-applied challenges, doesn't that effectively turn intermediate scrutiny into strict scrutiny.
“The Justice is flagging a difficult conceptual challenge raised in prior argument — that as-applied challenges could collapse intermediate scrutiny into strict scrutiny — signaling both skepticism about the logical implications of the respondent's position and intellectual engagement with the doctrinal tension. The acknowledgment that it was 'maybe the hardest question' suggests genuine concern about the constitutional framework rather than outright hostility.”
What would your answer be to that? Would it be any different, or do you want to elaborate?
“The Justice is inviting counsel to respond to a prior point or argument, seeking elaboration without any evident hostility or skepticism. The open-ended phrasing 'do you want to elaborate?' signals genuine curiosity and a desire to hear the argument more fully developed, making this primarily clarifying and engaged in nature.”
No, I -- I think -- I think the answer is it absolutely wouldn't. You still are only looking for a substantial relationship, which means that you can have these sorts of requirements where there are a lot of -- under Caban and under Lehr, there's still a lot of fathers that are out of luck that they actually, like, probably do have a good relationship with their kid, but they didn't figure out -- fill out the right paperwork, they didn't do this, they didn't do that. And heightened scrutiny doesn't require that they be excused from those procedural burdens. So I do think that heightened scrutiny allows you to have, like, procedural requirements that people have to go through and those can be enforced. Strict scrutiny does not allow that. But that's different from saying that if the complete rationale for a classification just doesn't apply to you, that there's no 1 equal protection claim you can bring. And -- and some of the -- I -- it's -- it's complicated to talk about the difference between facial and as-applied post-CASA because I think a lot of the things that we called facial -- facial challenges now would be viewed as overbreadth challenges, right, where someone is trying to say the law is so overbroad in general it has to all be struck down, and we have that for First Amendment. I don't think we have that anymore for most equal protection claims. And so I think taking this facial as-applied framework from before CASA, where we allowed these facial attacks on statutes, and then just transporting it into as-applied cases post-CASA doesn't necessarily work. I think some of the terminology might need to be rethought. And -- and so, again, that's another reason why there's not a lot of precedent in this area, as several of you all have acknowledged, and that's another reason why I don't think this should be the case that makes that precedent when it's unnecessary to do so.
Thank you, counsel. Justice Thomas? Justice Alito? Justice Sotomayor?
“This is purely procedural language from the presiding Justice, polling colleagues for questions after counsel's argument. It contains no emotional valence, no substantive legal content, and is entirely administrative in nature.”
Would you address a little bit the quantum of certainty or uncertainty that would have to exist in the science? Your co-counsel -- or the counsel on the other case said that if it's 50 percent, the state loses. But I don't -- I'm always hesitant about these percentage cases because it's never quality -- quantity -- it's not -- never quantitative, it's qualitative. So what do you think the qualitative standard is?
“The Justice is intellectually curious and exploring the standard of proof for scientific uncertainty, pushing back gently on a quantitative framing ('I'm always hesitant about these percentage cases') while genuinely seeking to understand the qualitative standard. This reflects engaged exploration and clarification rather than hostility or strong skepticism.”
Well, I mean, to be clear, I don't actually think there's uncertainty in the case of someone who's had puberty blockers and then gender-affirming hormones. Our position is there's zero uncertainty. It's actually clearly in our favor. So I -- but, in general, I think it's hard to give, you know, a quantitative answer to that. I think part of heightened scrutiny 100 involves taking all of these factors into account. This Court, you know, has said on several occasions that heightened scrutiny can accommodate deference. And I think -- I honestly think it's a case-by-case decision that also looks at how harmful the classification is, how burdensome it is. I don't think it's just -- I don't think you just look at the accuracy of the classification and add a number value for how certain we are that it's accurate. I think many other factors come into play.
Justice Kagan? Justice Gorsuch? Justice Barrett? Justice Jackson? Thank you, counsel. Rebuttal, Mr. Williams. REBUTTAL ARGUMENT OF MICHAEL R. WILLIAMS ON BEHALF OF THE PETITIONERS
“This is purely procedural and administrative in nature, polling justices for questions and transitioning to rebuttal argument. There is no emotional valence or argumentative content whatsoever.”
I think you've now heard Respondent abandon the Fourth Circuit's logic on Title IX, and I think, in many ways, that makes this Court's task that much easier. 101 Congress authorized regulations allowing sex-separated athletics. West Virginia's definition of "sex" tracks the ordinary meaning in 1972 and 1974 and the regulatory framework that Congress endorsed. I -- I think, Mr. Chief Justice, your question really highlighted how B.P.J.'s approach unmoors this -- the statute and the regulation under Title IX from on the basis of sex. B.P.J.'s test in turn begins to look more towards other characteristics that aren't on the basis of biological sex, and I think that's not consistent with what we see there. I also think the answer to Justice Barrett's question reflected how, under B.P.J.'s theory, this really isn't about competitive advantage, that really what this does turn on is gender identity because B.P.J. continues to maintain that a cisgender boy who continues to not have those same biological advantages would nevertheless still be kept off of the boy -- of the -- of the girls' sports team. So, if you endorse that philosophy, that would require the Court to hold that 102 longstanding Title IX athletic regulations are unlawful. It would eliminate sex-separated athletics entirely. And I think it would defeat Title IX's core purpose of ensuring equal athletic opportunity for both sexes. On the equal protection side of the house, the question is whether the classification is substantially related to an important governmental interest. And I think that B.P.J. ultimately wants to rewrite the classification to be something that it is not. Biological sex substantially relates to athletic performance. That's exactly why, in fact, Title IX regulations authorize sex-separated teams in the first place. Respondent's test effectively ratchets up the intermediate scrutiny standard into a perfect fit, best fit, best disposition case that this Court has repeatedly said is not the standard under intermediate scrutiny cases. That is the standard for strict scrutiny cases. You have heard it several times today. Justice Sotomayor, you asked about deference. I think this Court has also 103 repeatedly recognized that in areas of evolving science and medicine, especially involving children, legislatures have the primary responsibility for weighing competing evidence and making the policy judgments. I think the Court just recently said that in Skrmetti, but I certainly don't think that case stands alone in recognizing that especially when you have competing balances of harms, Justice Kavanaugh, when you're weighing these sorts of zero-sum games, that's a choice that's a policy judgment that ultimately rests in the hands of the legislature. In the end, this Court has "recognized" physical differences between men and women. They are enduring. And inherent differences between men and women are cause for celebration. That is all that West Virginia's law does here. It should be upheld. Thank you.
Thank you, counsel. The case is submitted. (Whereupon, at 1:22 p.m., the case was submitted.)
“This is a purely procedural closing statement marking the end of oral argument with a timestamp. It contains no emotional valence, questioning, or evaluative content whatsoever.”