Title IX - Supreme Court Hearings

[PersonIrresponsible]

On January 13th, there will be two cases heard in the US Supreme Court to determine whether those with XY chromosomes, or to be exact: male, can compete in Women's Sport.

The American Civil Liberties Union are suing to ensure that Trans People (men) can participate in Women's Sport.

Next stop: Weeping Olympics: The place where feelings are competed for.

Well the UK Supreme Court has been there, so that should give them a steer.

(I know the UK and US SCs are not the same sort of thing, but still.)

You may be correct about his argument. As I said, I only heard the snippet on X, not the whole argument.

I do think that the argument is similar. E.g., if an employer fired someone who ate bagels bc they assumed ppl who ate bagels were Jewish, that would be protected IMO. It is often stereotypes that lead to discrimination.

I agree w you that the "sex" must have a clear definition under Title IX. That's why I said I agreed w Alito.

Wow. I thought they must have benched Strangio for orals because Block was better.
Apparently not.

I couldn't disagree more and I love the FWS decision.

That was interpreting one statute. The US SCOTUS is interpreting an entirely different statute and the US Constitution. If the Equality Act had similar language, history, and purpose as either the 14th Amendment or Title IX I might agree but it doesn't.

Following his logic (or lack of logic), there would be no definition of 'Jewish'.

He isn't talking about discrimination by perception, he is arguing that the concept of sex shouldn't be defined.

I don't think discrimination by perception is relevant to this case anyway, because male and female sports categories are not based on appearance.

You are probably correct about his argument since I only heard the bit on X. I'm sure I'm missing a lot.

As far as I know, "discrimination by perception" is something in UK law but not US law. But students might be protected under Title IX against discrimination that was based on their stereotypical behavior that fits (or goes against) gender stereotypes. I think that's a very reasonable argument. Again, I'm not sure that was the argument he was trying to make (though not clearly).

It's remarkable how much gender critical reasoning the US Supreme Court (the conservative justices anyway) has absorbed:

• Sex is binary (and real)
• Gender identity is subjective, possibly transitory, not externally verifiable and and not a basis for the same kinds of rights as we grant sex and race, and other immutable characteristics.
• Federal laws shouldn't shouldn't be used to insist that men be allowed to participate in women's sports and more broadly, federal law shouldn't be used to insist that we call a certain class of trans identified men, 'women', i.e. it is reasonable for states to categorically treat trans identified men as men.
• Individualised exceptions under which some men may be considered to be women are the opposite of discrimination protections, they destroy existing protections and the concept of equal protection.
• It's not just that Title IX cannot be reinterpreted to include gender identity, there's no way to argue that can that doesn't quickly collapse into parody that frankly legal professionals should be embarrassed to put forth (not said explicitly but heavily implied)

The bottom line is that states obviously have legitimate interests in sex‑based rules - they're needed for fairness for women. And gender identity base rights are in direct conflict of them. The question shaping up is - 1) can Title IX be interpreted to mean gender identity rather than biological sex: almost certainly not; 2) Even if it could be interpreted to mean gender identity rather than biological sex, would it be constitutional: almost certainly not. It will be quite interesting to see how the minority tries to hedge against the majority ruling given weakness of the arguments.

It will be very interesting to see how the reasoning pans out. It's a while since I read the Skrmetti judgment, but iirc Roberts CJ for the majority had obviously been paying close attention to UK developments, and Alito's concurrence covered a lot of ground that will be familiar to us.

Sotomayor for the minority leaned heavily into "these poor children, why can't all y'all just be kind" which, given that Sotomayor is a brilliant lawyer who can make a reasoned case when it suits her, was embarrassing.

I think we'll see something similar this time round, 6-3 unless Gorsuch goes wobbly (which you can never rule out)

Quick post about the levels of judicial scrutiny under US law. SCOTUS will probably not decide anything as broad as "it's reasonable for states to categorically treat trans identified men as men" Skirmetti was very narrow and I expect this case to be as well. But, possibly more importantly, Gorsuch wrote Bostock v. Clayton County, a 6-3 decision in 2020, that held that Title VII (statute that prohibits employment discrimination) protections covered gender identity as well as sexual orientation. He was joined by Kavanaugh and Barrett as well as Sotomayer, Kagan, and Brown Jackson.

I think it's likely that the Court finds that transgender claims under Title IX and the 14th Amendment only need to meet the rational basis test, i.e, whether a law is "rationally related" to a "legitimate" government interest. It's easy to meet this test which is why the plaintiffs are arguing that intermediate level scrutiny should apply. That applies to sex discrimination, discrimination based on illegitimacy, and content neutral limitations on speech. If intermediate level scrutiny applies, the government must show that the law or policy being challenged furthers an important government interest by means that are substantially related to that interest.

Finally, strict scrutiny applies to racial discrimination claims. Under strict scrutiny, the government can demonstrate that the law or regulation is necessary to achieve a compelling state interest, that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose.

A big part of this case is what level of scrutiny is appropriate for gender identity.

ETA: Did not mean to hit send. Sorry.

I disagree about how the court decide, obviously, but certainly there's a wide range of reputable opinion on what and how broadly SCOTUS will rule. But I think it's important to note two things:

• Skirmetti might have been narrow in some sense, but it explicitly laid out that gender identity is not (always) immutable or intrinsic, or (ever) verifiable. That's a major clarification.
• Bostock v. Clayton County is compatible with categorical declaration on the state and federal level that trans identified men are always men. I.e. it was an equal protection case, and whatever you think the nature of gender identity is, trans gender people have a right to equal treatment. That doesn't imply that they have the right to be treated as the sex they identify as. Personally I think there's considerable indication the SCOTUS would like to make exactly that clarification, including yesterday's testimony, but I wouldn't want to re-litigate the case here on MN, especially given the fact that SCOTUS can and often does surprise in its rulings.

When is SCOTUS likely to rule?

@GallantKumquat
"Skirmetti might have been narrow in some sense, but it explicitly laid out that gender identity is not (always) immutable or intrinsic, or (ever) verifiable. That's a major clarification."

I can't find that in CJ Roberts' opinion. Do you have a citation? Thanks.

FWIW, here's the opinion I'm looking at: https://www.supremecourt.gov/opinions/24pdf/23-477_2cp3.pdf

Justice Barrett's concurrence starts with

Because the Court concludes that Tennessee’s Senate Bill 1 does not classify on the basis of transgender status, it does not resolve whether transgender status constitutes a suspect class. Ante, at 16–18; see Geduldig v. Aiello, 417 U. S. 484, 496 (1974). I write separately to explain why, in my view, it does not.(emphasis added)

I don't see why the Court would rule on whether gender identity is immutable, intrinsic, or verifiable if it didn't address whether transgender status constitutes a suspect class.

My guess is near the end of this term, i.e., late June or early July. But that's a guess. They might issue their opinion earlier.

The court next declined to recognize transgender individuals as a suspect class, finding that transgender individuals are neither politically powerless nor a discrete group defined by obvious, immutable, or distinguishing characteristics.

The above can be found in the document you posted. Variations can be found in all the concurring opinions. This was used directly in Orr v. Trump by SCOTUS in rejecting sex markers chosen by the applicant.

Helen Joyce has retweeted an audio clip of Justice Ketanji Jackson's comments on defending the right of men to participate in womens sport. For those not on X:

Justice Ketanji Jackson: "...what is happening in this law is that it is treating someone who is transgender, but does not have, because of the medical interventions and the things that have been done, who does not have, uh, the same, uh, threat to physical competition and safety and all the reasons that the state puts forward - that's actually a different class, says this individual. So you're not treating the class the same. And how do you respond to that?..."

😖

Wow. 😬
After not being able to answer what a woman was during her confirmation hearing ("I can't... Not in this context. I'm not a biologist") maybe she should have recused herself.

That was the Sixth Circuit, not SCOTUS

Here's a fuller version of the quote:
The Sixth Circuit reversed. As relevant, the Sixth Circuit held that the United States and plaintiffs were unlikely to succeed on the merits of their equal protection claim. See id., at 479–489. The court first found that SB1 does not classify on the basis of sex because the law “regulate[s] sextransition treatments for all minors, regardless of sex,” by prohibiting all minors from “receiv[ing] puberty blockers or hormones or surgery in order to transition from one sex to another.” Id., at 480. The court next declined to recognize transgender individuals as a suspect class, finding that transgender individuals are neither politically powerless nor a discrete group defined by obvious, immutable, or distinguishing characteristics. Id., at 486–487.

Concurring opinions are opinions of the individual justice(s) who wrote or joined them, not the opinion of the Court.

One of the first things you learn when you study law is the difference between the opinion of the court, concurrences, and dissenting opinions. If you say
"Skirmetti said this", it means that the majority opinion of the Court held this, not that it was in a concurrence.

This article is pretty clear. It's about the courts in Canada but US courts work the same way on this topic.

Concurring or dissenting decisions are not binding; however, they can act as “persuasive” authority that can guide future decisions.

https://www.constitutionalstudies.ca/2020/07/majority-concurring-and-dissenting-decisions/

I'll try to find something on the holding vs the rationale vs dicta/obiter dictum too. Courts may say things in passing that are not binding. It's important to make the distinction between a court's holding and other parts of the opinion;.

Transcript of oral arguments in the US Supreme Court today on Title IX and whether boys who claim a female identity should be allowed to compete with girls

https://supremecourt.gov/oral_arguments/argument_transcripts/2025/24-38_n75p.pdf

Summary of arguments/takeaways:;

Alito on fire short summary of what he said this stuff is so stupid:

ALITO: What does it mean to be a man or woman?
ACLU: We do not have a definition for the Court.
ALITO: How can a court determine whether there's discrimination on the basis of sex, without KNOWING what sex means?!

Alito: Do you agree that school may have separate teams for boys and girls? ACLU: Yes.
Alito: So we need to have definition of boys and girls
. ACLU: We don't have a definition.
Alito: Say physically normal guy wants to take part on girls' track team, says he's female. Can school bar him?
ACLU: Yes. Has sex-based biological advantage.

Details and listen:;
Alito presses trans female athlete's lawyer on definition of woman during SCOTUS hearing
https://www.foxnews.com/sports/alito-presses-trans-female-athletes-lawyer-definition-woman-during-scotus-hearing

This was followed by questions outside

Jackson Thompson
The attorney representing a trans athlete in West Virginia argued to the Supreme Court that the definition of 'sex' should not be used when ruling on how to enforce Title IX during oral arguments today. I asked the ACLU's Joshua Block what his definition of 'sex' is after the hearing, and he did not provide his definition, and insisted it's not what's at issue in the case. He then dodged any further questions.

What is going on... part of a TA strategy.

Benjamin Ryan

The ACLU evidently does not want sex to be defined in the sports ban cases before SCOTUS.

If the court were to define sex and to state explicitly that it does not include gender identity, this likely could provide devastating for the trans movement, legal experts have told me. It could be used as a precedent off of which to segregate single-sex spaces based on biological sex, including bathrooms and locker rooms, prisons, and domestic violence and homeless shelters.
Quote
https://x.com/benryanwriter/status/2011212090963279929

Summary of day
Supreme Court appears likely to uphold existence of women's sports

https://www.scotusblog.com/2026/01/supreme-court-appears-likely-to-uphold-transgender-athlete-bans/

Meanwhile outside:

Protesters Duel Outside Supreme Court As Clash Over Trans Athletes, Women’s Sports Reaches D.C.
As the Court heard two cases, activists on both sides sparred over fairness, inclusion, and who should compete in girls’ and women’s sports.
https://www.outkick.com/sports/supreme-court-protests-transgender-athletes-womens-sports

After some kind of scuffle a trans male was arrested, he was then released an male gender crit doctor was arrested, then released. Normal Guy stuff.
https://x.com/JamieWhistle/status/2011161383480803524

Jeremy Christiansen

Riddle me this. Four major Big Law firms are counted on the side that thinks men have a legal right to play in women's sports.

There are zero major firms on the other side. Some good boutiques, no doubt, but oddly these small firms are even representing multiple amici in the case filing separate briefs (a weird thing before SCOTUS). Not a single Big Law firm to be found to represent these amici seeking to weigh in on an issue that is 80/20 in the normal world.

Think about that.

To be honest I'm not 100% what we're supposed to be arguing about. The whole point of the Skrmetti ruling is that SCOTUS upheld the Sixth Circuit ruling and framing, almost in its entirety. Are you denying that? With respect to that ruling:

The court next declined to recognize transgender individuals as a suspect class, finding that transgender individuals are neither politically powerless nor a discrete group defined by obvious, immutable, or distinguishing characteristics.

This is the crux of the whole case. The Supreme court concurred:

• Trans-ness is not immutable
• Trans-ness has no external distinguishing characteristics
• Because of the above, trans people do not form a discrete group. (Discussed at at length and from several perspectives.)
• Trans people are not politically powerless, because they can't be defined as a coherent group. Even if they could be defined as a coherent group they would likely still not be politically powerless.
• Therefore, because of all the above, transpeople are not a suspect class.
• Therefore SB1 is not subject to heightened scrutiny under the Equal Protection Clause.
• Therefore SB1 does not classify on any bases that warrant heightened review.

From SCOTUS' ruling:
We are asked to decide whether SB1 is subject to heightened scrutiny under the Equal Protection Clause. We hold it is not. SB1 does not classify on any bases that warrant heightened review.

You seem to believe that SCOTUS concurred with the Sixth Circuit ruling, but for different reasons, going so far as to reject the basic framing of the case. Perhaps I should have asked you to elaborate on that, as I'm not understanding your point if that's the case.

You're free to interpret the ruling anyway you like, of course. If you believe that the finding that trans-ness lacked "obvious, immutable or distinguishing characteristics" was not part of SCOTUS' reasoning or that it won't be used to decide future trans cases that's a truly novel reading of the case.

Best of luck to all those fighting for women’s and girls’ rights to single-sex sports. Shame on ACLU. But unions over here are just as bad.

I appreciate your knowledgeable interactions, CuiBon0 and GallantKumquat,
I don't think you are arguing as much as debating, and it's informative and interesting and please continue!

ACLU: Yes. Has sex-based biological advantage.

So is the ACLU arguing that males must meet a specific standard to compete in female sport? Have they explained what this is?

Will the court consider whether that bar actually does mitigate sex-based biological advantage?

In the US, do under 18s routinely have the kind of treatment that would enable them to meet the standard suggested by the ACLU?

Someone a while ago said that only when the rubber of trans ideology hit the tarmac of the law at the highest level, where legal definitions are everything, would the insanity genuinely fall apart under the merest of questions, where definitiveness is everything.
And so here we find this is true, the finest brains (lol) of pro trans ACLU attorneys literally come unstuck when asked for the most basic of definitions.
There is no defining male and female, yet there is male advantage in sport.
There is no defining male and female, yet we'll ascribe based on stereotypes like "limp wristedness"
The law at the highest level in the US is shining unrelenting sunlight on the people chosen to best defend the ideology, and there's nothing there, it's not even Emperor's New Clothes.
What's being revealed is what we've all suspected, tbh always known, but were never sure would be laid out forensically for all to see.
That the ideology is empty, based on double negatives, an ideology that cannot be made to work because it's inherently based on logical fallacies.
Yet if allowed full rein, would crush women's and kid's rights for some sort of post modern view on reordering reality.
Also noted that it's only taken root because it's controlled the language, hijacked the definitions, set the rules on what can and cannot be said and agreed.
SCOTUS judges are torching these semantics, word plays, linguistic mind games.
Once rigor is reintroduced to the discussion, trans ideology vaporises like steam from a kettle.

Here is a very clear and straightforward quote from Alan Hurst, the Idaho solicitor general :

Transgender individuals, he continued, did not face the kind of denial of civil rights that black Americans and women faced, for which the legal and constitutional protections in question were intended.
"If we look at that history, and we compare it to the history of African-Americans and women who were not able to vote, who were not able to own property, who had express classifications based on their status written into the law for most of this country's history, these things don't compare," he said.
US Supreme Court appears likely to uphold restrictions on trans athletes

That's what a lot of us have been saying - trans people already have the same rights as other subjects/citizens, so what they are asking for are not 'trans rights' but 'trans privileges'.

“That the ideology is empty, based on double negatives, an ideology that cannot be made to work because it's inherently based on logical fallacies.”

“Yet if allowed full rein, would crush women's and kid's rights for some sort of post modern view on reordering reality.”

And once you see this, you cannot unsee it. It becomes very clear time and time again.

“Also noted that it's only taken root because it's controlled the language, hijacked the definitions, set the rules on what can and cannot be said and agreed.”

Hence why it is collectively harmful to use female language for any individual male person.