Courthouse Steps Preview: Little v. Hecox and West Virginia v. B.P.J.

In 2020 and 2021, Idaho and West Virginia passed laws that required public schools and colleges to designate sports by biological sex and to forbid males from competing on women’s sports teams. Two male athletes who identified as females, one a middle school shot-put and discus thrower and the other a collegiate cross-country runner, challenged the laws in the U.S. District Courts for the District of Idaho and Southern District of West Virginia, alleging a right to compete in women’s sports and saying the state laws discriminate on the basis of sex and transgender status in violation of Title IX and the Fourteenth Amendment’s Equal Protection Clause. In Little v. Hecox, the Idaho district court entered a preliminary injunction against the Idaho law for violating the Equal Protection Clause, and the Ninth Circuit affirmed. In West Virginia v. B.P.J., the West Virginia district court preliminarily enjoined the West Virginia law for violating Title IX and the Equal Protection Clause and then dissolved that injunction, upholding the law at summary judgment. The Fourth Circuit reversed and ordered the district court to enjoin the law for violating Title IX.
The Supreme Court accepted certiorari on both of these cases and will consider whether states can designate women’s sports based on biological sex consistent with Title IX and the Equal Protection Clause. Join this FedSoc Forum to discuss these cases and the broader issues at play, including the scope of Title IX and the Equal Protection Clause as they relate to school sports and gender identity.
Featuring:

Jonathan Scruggs, Senior Counsel and the Director for the Center for Conscience Initiatives, Alliance Defending Freedom
(Moderator) Sarah Parshall Perry, Vice President & Legal Fellow, Defending Education

Episode Transcript

Speaker 1 (00:02):
Welcome to FEDSOC Forums, a podcast of the Federal Society's
Practice groups. I'm Ny kas Merrick, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock form programs, become a Federal
Society member today at fedsoc dot org.

Speaker 2 (00:18):
Hello everyone, and welcome to this Federalist Society a virtual event.

Speaker 3 (00:22):
My name is Marco J.

Speaker 2 (00:24):
Lloyd and on Assistant Director of Practice Groups for the
Federalist Society. Today, you're excited to host a Courthouse Steps
preview webinar on Little v Heacock's and West Virginia VBBJ
featuring Jonathan Scruggs. Jonathan serves as Senior counsel and Vice
President of Litigation Strategy with Alliance Defending Freedom. In this role,

(00:44):
he identifies new litigation opportunities, develops legal strategies and approved
processes across multiple litigation teams. Since joining ADF in two
thousand and six, Jonathan has worked on and prevailed in
a variety of cases relating to Title nine under ideology
and People's right to freely express their faith, including Masterpiece Cakeshop,

(01:05):
the Colorado Civil Rights Commission three or three Creative Volanis
and Brush and NIBB Studio v Phoenix. Our moderator today
is Sarah Parshall Perry. Sarah is vice president and a
legal fellow at Defending Education. Before Defending Education, she was
a senior legal Fellow in the Edwin Mees Center for

(01:25):
Legal and Judicial Studies at the Heritage Foundation. She's also
served as senior counsel to the Assistant Secretary for Civil
Rights at the US Department of Education. She also frequently
appears on numerous national and international media outlets, and setsified
multiple times for the US House Judiciary Committee. If you'd
like to learn more about today's speakers, their full bios

(01:47):
can veete on our website fedsof dot org. If you
have a question at any point in today's program, please
enter into the Q and A function at the bottom
of your zoom window, and we will do our best
to answer as many as we can. Only I'll note that,
as always, the Fertile Society takes no position on particular
legal or public policy issues. In all expressions are those

(02:08):
of the speakers. With that, Sarah, thank you for joining
us today, and the floor is yours.

Speaker 4 (02:13):
Thanks Marco, well, thanks to everybody who's joined us online.
This is a series of cases that I think a
lot of us have a keen interest in, and at
the close of what many considered to be a very
high profile term last go round, with everything from gender
medicine bands for minors coming out of particular states to
so called ghost gun bands to medicate funding for abortion

(02:34):
free speech in the First Amendment.

Speaker 3 (02:36):
These were sort of a series of very high profile cases.

Speaker 4 (02:38):
But right at the end of the term, the Supreme
Court decided to grant cert in two marquee cases for
this term. No doubt Heeco's versus Little in West Virginia
versus BPJ. Now the Supreme Court is going to consider
in these cases whether state bans on natal men and
women's scholastic athletics violate Title nine of the Education Amendments
of nineteen seventy two and the equal Protection clause of

(03:00):
the Fourteenth Amendment. So to my mind, but I have
a tremendous guest with me who knows this issue better
than just about anyone. To my mind, the answer, based
on the Court's textualists and originalist jurisprudence both recent and historical,
is yes. But I'd like to get Jonathan's take on this,
but a little bit of background. In these cases, like
twenty five other states, West Virginia.

Speaker 3 (03:21):
And Idaho enacted laws.

Speaker 4 (03:23):
Mandating that participation in women's scholastic athletics be limited to
biological females, thereby eliminated participation of so called transgender females
who are biologically male. Now in West Virginia, after preliminarily
enjoining the sports law, a district court later upheld it
at some rejudgment, dissolving its prior injunction. The Fourth Circuit,

(03:45):
based on some previous Fourth Circuit precedent that will probably
touch on today, reversed in April of twenty twenty four,
holding that the sports law likely violated Title Line and the.

Speaker 3 (03:56):
Equal Protection Clause as well.

Speaker 4 (03:58):
It determined that this discriminated based on both sex and
gender identity, recognized gender identity as a protected class, and
then applied intermediate scrutiny, the level of judicial review required
for sex based classifications under the law, to just the
mail plaintiff, Relying on the Supreme Court's twenty twenty decision
Vostock versus Clayton County, for which I would argue that

(04:21):
much violence has been done in the field of antidiscrimination law.
The Fourth Circuit majority also interpreted Title Line to encompass
not just protections based on sex, but also those based
on gender identity, so the state was therefore required to
allow the participation of the trench gender athlete.

Speaker 3 (04:39):
In Idaho, a district court enjoined.

Speaker 4 (04:41):
Its law for violating the equal protection clause, and on appeal,
the Ninth Circuit affirmed, and the court held that Idaho's
definition of sex was discriminatory, asserting that sex is determined
by perceived internal gender identity rather than biological sex, and
then went further dismissing concerns of fear in athletic competition,

(05:02):
noting the rarity of transgender athletes in women's sports, and
stressing ultimately the availability of hormone suppression which could conceivably
mute certain athletic advantages of natal men.

Speaker 3 (05:15):
So similar posturing.

Speaker 4 (05:16):
Coming out of two states to state bans on natal
men and women's scholastic athletics. I'm joined today by Jonathan Scruggs,
as we previously mentioned, and my initial question to you, Jonathan,
is whether these cases are ultimately carbon copies of one another,
or are there unique sort of posturings of both of
these particular cases.

Speaker 5 (05:37):
Yeah, there are definitely some similarities, but there are some
slight differences. The laws are pretty similar. There's some small differences.
For example, Idaho's law applias from Cape all the way
through twelve. West Virginia's goes from seventh all the way
up to college. And then I think the biggest difference
is the Peacock's case alban Night Circuit only deals with

(05:59):
equal protection, whereas the BPJ case deals with both equal
protection and Title nine. So I think that's one reason
the court to both these cases up is really to
make sure that they're hitting all the issues because you have,
in one situation of a plaintiff who is in college,
a male that digentifies his female trying to play at
a university. But in the other case, you have someone

(06:21):
who's now in high school. So you've got different ages,
different grade levels, and somewhat different legal arguments. But when
you put it all together, they are very similar cases
and really tee up the major issue of how do
you find sex in Title non and then also how
do we define sex for equal protection purposes under the

(06:42):
fourteenth Amendment and how those analysis should work in each context.

Speaker 3 (06:46):
Yeah, and a lot of these claims. Obviously, the title
line of the.

Speaker 4 (06:49):
Egal protection claims often appear together in cases involving these
sort of transgender athlete bands or even separation of bathrooms
by biological sex.

Speaker 3 (06:59):
Will touch on that and a little bit as well.

Speaker 4 (07:01):
Both of the cases in the Fourth Circuit and the
Eleventh Circuit relative to the bathroom issue itself, the Title
nine and the equal protection issues did appear simultaneously, So
let's kind of take them piece by piece. Let's talk
first about Title nine. Obviously, we have some history here.
We've been playing a bit of regulatory ping pong between the.

Speaker 3 (07:20):
Biden administration and the Trump administration. You know.

Speaker 4 (07:23):
His sort of parting salvo when it came to the
Obama administration through the Department of Education, was essentially an
informal directive to every educational stakeholder open all bathrooms to
any individual, regardless of gender identity or biological sex. That
was obviously summarily reversed under Trump forty five. Then we

(07:43):
saw rulemaking clarifying some specifics under Title nine.

Speaker 3 (07:47):
That rule, once the Bide.

Speaker 4 (07:48):
Administration took office, was put on hold, unfortunately, and a
new rule after recision was recreated. We went through the
process then of c some different modifications of titleline, the
most significant of which, and Germaine, of the purposes of
this discussion is the expansion of sex to include gender
identity or transgender status. Now, the court obviously relied on

(08:12):
Bostock versus Clayton County. We can talk about that again.
This is one of those cases for which you know,
I think that a lot of violence has been done
in the field of civil rights laws specifically, but Bostock
versus Clayton County has provided the platform for the previous
administration to expand rule in Title nine to include a

(08:33):
participation in athletic teams in bathrooms based on gender identity
and not just biological sex that doesn't seem to be
based on the plain text, and implementing regulations to be
supported by the actual law itself.

Speaker 3 (08:46):
What's your take? Yeah, No, I think that's a decker right.

Speaker 5 (08:49):
You have a massive expansion of boss Stock storrying now
a mission even before with you that wrote my first
letter about the bathroom mission in twenty fourteen, and we've
been going back and forth pe poying about this issue.
I'm actually hopeful that this case will finally resolve it
once for all, is what do sex mean in Title nine?
And I think the most important thing if you just
take a step back, and we can talk about the

(09:10):
sub arguments. But if you take a step back, it
really makes little sense to apply boss Stock in the
title non context because everyone admits that Title nine allows
various sex decisions. And just as a thought experiment, imagine
if you're at a law firm, all right, and the
law firm said, hey, we're going to have our bankruptcy
group only be men and our you know, malpractice group

(09:33):
only be women. That would violate Title seven because sex
is not relevant for employment. That was one of the
key findings in Boss Stoc and one reason why Bostock said, hey,
we're not going to apply to bath They're not going
to say anything about bathrooms. Well, but the reality is
in Title nine you have to be sex conscious because

(09:53):
Title nine says you have to provide equal opportunities for sports.
And starting way back when in nineteen seventy four, with
a job It's amendment that directed the agency to issue
regulations about sports, it's been the widespread acceptance that schools
not only can be sex conscious and allowing sex separated

(10:16):
sports teams, but many times they have to be in
order to provide equal opportunity. And so there have been
many cases at the lower courts, for example, when a
male athlete filed a lawsuit said it valuate Title nine
and equal protection because the school got rid of the
men's teams, for example, in order to provide more opportunities
for women. And all those cases ruled against the planet

(10:40):
saying that you know, the male has no right essentially
to be on the women's team or have their own
separate sports because they can always participate in another male sport.
So the point being is that Title nine by itself
has to be sex conscious. That's the only way to
operate and maintain showers, bathrooms over nine accommodations in of

(11:01):
course sports, because and I think this is relatively undisputed.
Everyone agrees that physiological differences matter for sports. That's just
common sense, and we can talk a little bit about that. Ironically,
the plaintiffs in both these cases they don't object in
theory to sex distinctions as a general matter in sports.

(11:22):
They essentially argue that the definition of sex or the
definition of what is a woman, has to include them,
even though they are males who identify as females, So
that could just kind of set the overarching framework. Lot
it is just a common sense matter. It's just not
possible to apply that boss Stock analysis. You have to

(11:43):
be sex blonde in the title non context.

Speaker 3 (11:46):
Yeah. Yeah.

Speaker 4 (11:47):
On the implementing regulations, as you noted with the Javias Amendment,
I mean we actually see terms like male and female,
boy and girl, mother and father, both or either. So
it's necessarily I think indicative of the fact that Congress
anticipated a sex binary right. So we're just looking at
the plain text implementing regulations, and of course the history
itself of the law. There were two hundred and fifty

(12:09):
versions of House and Senate education bills that went back
and forth between committees before the final language of Title
nine was ultimately agreed upon, which indicates to me, And
of course we're going to talk a little bit about
sort of what the court has done in other antidiscrimination contexts.
But to my mind, Congress had the opportunity to include something,
for example, like gender identity, but that would itself, I think,

(12:30):
defeat the.

Speaker 3 (12:30):
Purpose of sex based equality.

Speaker 4 (12:32):
Within the education because sex is relevant when we want
to make sure that there are provision of equal opportunities
for both of them. I like to kind of describe
this as Title nine being sex prohibitive or Title nine
being sex permissive, whereas Title seven is sex prohibitive because sex,
of course, unless it's a bonafide occupational qualification, is completely

(12:53):
irrelevant to whether or not an individual can do their job.
So they really are very different analyzes. But it's I
think very easy for some liberal interpretations to rely very
easily on boss Stock and say, well, we're dealing with
a similar prospect and anti discrimination law here. And this
is a question again that the court did not get

(13:13):
to in Scrimmetti, right Us versus Scrimmetti.

Speaker 3 (13:16):
Again, one of the.

Speaker 4 (13:16):
Terms market cases whether or not state bans and so
called gender affirming care for minors were constitutional. They didn't
get to whether or not bosstoc expands beyond the Title
seven context.

Speaker 3 (13:29):
But they're really going to have to address that head
on in this one, aren't they. I think so.

Speaker 5 (13:33):
So, you know, they didn't have the issue of Title
nine per se before them, but was clearly for them
as equal protection clause in Scrimmetti, and they kind of
avoided that issue by saying even if Bostock did apply,
the Tennessee law complied with a Bostock type analysis, But
they're got to reset issue here, I largely think and

(13:54):
to your point, you know, I think it is the
cold case rais is kind of an interesting textual analysis,
right because Title nine the statute does not explicitly mention athletics.
It doesn't explicitly mentioned restrooms. Right, So how do we
get from there to here? And I think the only
logical analysis is the Title nine text essentially says you

(14:14):
shouldn't be subject to discrimination on the basis of sex.

Speaker 3 (14:17):
The only way to read.

Speaker 5 (14:18):
That, and given what has happened now, is that does
not prevent people from taking consideration of sex in certain
contexts where sex matters, such as athletics, such as restrooms. Otherwise,
if you take a pure boss Stocks style reading of
Title nine, you would invalidate almost all of the regulations

(14:42):
that Congress that were initially adopted right after Congress past
Title nine, because many of those regulations, including the regulations
on sports, bathrooms, sex specific sex education classes, all of
them permit sex distinctions.

Speaker 3 (14:58):
And even say, hey.

Speaker 5 (15:00):
Essentially do it by group analysis that says you can
provide you know, sex separated bathrooms as long as they
are comparable. Again, that would make no sense in the
employment context. So you know, you goa back what it's
called the canon of a contemporarious interpretation, because these regulations
were passed and we're consistently understood for a long period

(15:22):
of time right after Title nine was passed. I think
everyone agreed during that period that that's what Title nine
meant and allowed for, and it would really be upsetting
the cart and you know, to allowed to demand that,
you know, Title not be sex blind. So and I
think plainness in these cases, but really understand that. So again,

(15:44):
their argument in theory is not, hey, we object to
sex separated sports generally. It's just if you look at
just us, if you look at just the plaintiffs, the
males who identify as females as an individual, then you
have to allow us in.

Speaker 3 (15:59):
And we can talk about why that's wrong.

Speaker 5 (16:00):
But I think essentially that is a concession that Title
non allows for sex consciousness in some situations.

Speaker 3 (16:10):
Yeah, I would agree with that.

Speaker 4 (16:11):
You know, I think we've gotten a couple of pretty
good civil rights rulings from the Supreme Court, and while
not directly on point, I'm a little hopeful, but I'd
love to hear your perspective on this. Aims versus Ohio
Department of Youth Services AJT versus Oscio Area school districts.
These went to burdens of proof, right, does a majority
class plantiff have to meet a higher burden of proof
to prove that their employer is the unlikely individual that

(16:33):
would discriminate against the majority class? And the Supreme Court said, no,
burden of proof is the same for everybody, because honestly,
to find otherwise for one plane if versus another based
on one of their characteristics, would entirely defeat the purpose
of anti discrimination law in the first place. Are you
hopeful based on some of the rulings that we've seen
kind of at the outer edges of civil rights and
civil liberties from the Supreme Court here basically I'm getting

(16:56):
here towards textualist readings of the plain text of these
actual laws, are you hopeful that we might be informed
a little bit in what we see as the outcome
here in these cases?

Speaker 3 (17:08):
I mean, I think so.

Speaker 5 (17:09):
Obviously the core has been very textless focus and analysis
more most recently, but it's important stress that it's not
a litterallest textualism. Right, you have to take into consideration
context and plain meaning and kind of common language.

Speaker 3 (17:24):
Otherwise we get boss stock. That's right. Otherwise you kind
of have a repeat a boss stock.

Speaker 5 (17:29):
And so I think that's exactly why it's relevant to
look at this long period of time where if they
passed these regulations, everyone understood it.

Speaker 3 (17:37):
It was actually.

Speaker 5 (17:38):
Ratified, you know, the Title nine had at the time.
It's a bit of an unusual procedure where the job
as Amendment came in nineteen seventy four. Congress said hey,
give us these sports regulations, and they had the opportunity
to effectively veto them.

Speaker 3 (17:51):
They declined to do that.

Speaker 5 (17:52):
So they were essentially adopted, passed around for a long
period of time, and in a subsequent case later on,
the Supreme Court actually interpreted Title nine in the eighties
the nineteen eighties to be very narrow and to define
educational program to exclude athletic departments effectively. And then Congress

(18:13):
reversed that decision. They passed an amendment and reverse that decision.
And I think what you see is they're effectively ratifying
all the prior understanding of what Title nine requires in
this context of athletics and exports. So that's why I
go back to that initial point I made of how
this is a really interesting textual analysis, and this is

(18:33):
going to be a test for the Court of how
we do textuals right. Do we do it just by
focusing it on one word or do we look at
it broader and say, hey, even the text of Title
nine differs in Title seven because it allows for six distinctions.

Speaker 3 (18:50):
You know, I'll give you just one more example.

Speaker 5 (18:51):
I mentioned the regulations, but one provision in the Statute
of Title nine especially allows for what's called a construction
rule that says we will nothing in toil night should
be construed to prohibit sex distinctions in living facilities. Now, again,
that's not possible to apply bosstoc to that provision and

(19:12):
for it to make any sense. So that's just another
textual pointer. Once you factor in the regulations, once you
factor in the text itself.

Speaker 3 (19:22):
Even the exceptions in.

Speaker 5 (19:23):
Title nine talk about allowing for boy scouts and girl scouts,
and mother daughter events versus father son events, all of
very kind of focused defining sex based on biology and
allowing for certain distinctions based on sex.

Speaker 4 (19:40):
So let me talk a little bit about the Biden
Error rule and where it stands. We know when it
was released in August of twenty twenty four, coincidentally commensurate
with the Four Circuits determination in the West Virginia case.

Speaker 3 (19:51):
This was specifically a.

Speaker 4 (19:54):
Real upending of what we understood to be the framework
of Title nine, not just the evisceeration of due process concerns,
not just the implication of essentially forced speech through preferred pronouns,
because that, of course, was determined to be sufficient for
certain levels of harassment to indicate a violation of Title mind.
There were so many manipulations, but for our purposes focusing

(20:14):
strictly on the expansion of sex to include gender identity,
that rule was challenged, and no fewer than I believe
eleven federal court rulings and joined in every single one
of them, vacated by two went up to the Supreme Court,
coming out of the six and Tennessee versus Department of Education,
in which just based on an emergency petition for injunctive relief,

(20:35):
the states had argued, Listen, we have to get to
the point where we can enjoin this rule in the
application of these states. The Supreme Court agreed, and interestingly,
in the unsigned procuring order, all the justices uniformly said,
we agree that they're entitled to eliminary preliminary relief, especially
concerning the portion to expand gender to include or sex

(20:57):
to include gender identity.

Speaker 3 (20:58):
Where does that stand now?

Speaker 4 (21:00):
Now, in the midst of the entire landscape against which
we're having to interpret what happens with these women's sports cases. Obviously,
that rule, that titleline rule, incentivized sports like West Virginia
and Montana to pass women's Sports Protection Acts specifically so
that would be shielded from application of what was clearly
an expansion of regulatory authority through the requirement of education.

(21:21):
So where does that sort of fall into this context?

Speaker 5 (21:24):
Yeah, thankfully because of those vacator decisions, it's really off
the table. You mentioned the eleven lawsuits. I'm proud of
s a LA eightyf group power for we're involved in
five of them when we won essentially five injunctions and
the two va cator decisions that we are currently involved in,
they're actually at this point the Trump administation has declined

(21:45):
to appeal those, which we.

Speaker 3 (21:46):
Think is the right thing.

Speaker 5 (21:47):
Interveners have sought to intervene in the case to appeal them.
So technically those cases are not totally finalized, but the
vacators which vacating the Biden rule, and as you note,
the Biden rule essentially tried to put boss Stock into
the regulations and incorporate that into the Title nine. So
because those things have been vacated, they're all the table.

(22:08):
What's really I think the challenge is another thing you
note is, you know kind of the split amongst the
lower courts of how do we interpret even forgetting the
Biden Title nine, well, how do we interpret Title nine generally?
Do we interpret it in a boss Stock type way?
The Nice Circuit, the Four Circuit the Seventh Circuit have
said yes, or do we reject that? Essentially, as the

(22:30):
Sixth Circuit the Eleventh Circuit have both said, that's really
the issue on the table and to take us back.

Speaker 3 (22:36):
I think it's useful because.

Speaker 5 (22:38):
One of the arguments made in these cases at the
Nice Circuit in the Four Circuit is essentially that, look,
there was no need for these laws, that these laws
were really targeting people who identify as transgender, because everyone
knows that title not allows sex separated sports. So this
is really almost like an animus type Jerry manner. But
you know, you know both the legislative histories and site

(23:03):
situations across the country where males who identify as females
were competing in women's sports and winning. One case that
we were involved in Connecticut, and I think it was
the first women's sports type issue, which where you saw
two males compete in high school athletics in Connecticut and
I think eventually won fifteen state women's titles. We represented

(23:26):
four women and filed a lawsuit saying.

Speaker 3 (23:29):
That violated Title nine. We thought that lawsuit of.

Speaker 5 (23:31):
Twenty nineteen, and so at that time twenty nineteen twenty twenty,
there was a lot of confusion amongst policymakers, amongst school officials,
amongst sports officials about how what is required darn a
title on That is really when states stepped in and
started passing these Women's Sports Act. Idaho was the first

(23:51):
one of the nation in twenty twenty, West Virginia in
twenty twenty one, and then now you see twenty seven.

Speaker 3 (23:57):
States total have passed these laws.

Speaker 5 (24:00):
So our argument would be that these are not you know,
responding randomly or in any way singling out people who
identify as the opposite sex. But they were responding to
a natural result of men taking away women's opportunities in sports,
and that's what necessitated the legislatures to step in and respond.

(24:20):
And nothing in the laws make any distinction based on
gender identity. All they simply do is say, look, there's
men's teams, there's women's teams, are co ed teams, and
males defined biologically cannot compete in women's sports. Gender identity
is a totally irrelevant to that analysis because gender identity
does not affect your physiological ability.

Speaker 3 (24:40):
What does is your biological sex.

Speaker 5 (24:44):
And that's again, these laws are just tracking Title non
and focusing on biology and physiology, not gender identity.

Speaker 3 (24:52):
And I think that makes good sense.

Speaker 4 (24:55):
Let's talk a little bit about severability, and you and
I had talked about this before we started, but they're
really two big issues right now when it comes to
Title nine litigation. One is sports, naturally, but the other
is bathrooms. And one of the issues one of the
advancing sort of positions that the Biden administration had achieved
or argued for within their litigation. Their defense to the litigation,

(25:17):
the onslaught of requests for agenta relief was to say Okay,
as concerns this portion is sex to include gender identity. Fine,
we agree to actually enjoining that portion. But what if
we just keep the rest of the law going. What
we're trying to I think purse out now, and I
think a lot of people who are watching this are
going to be keenly interested in is what's happening in
the bathroom space. We've got conflicting circuit court precedent. Right,

(25:41):
the Fourth Circuit and the Grim versus Gloucester Canty school
Board decision actually determined that bathrooms could be essentially open
to anyone based on gender identity, and to hold otherwise
was a violation of both equal protection and Title nine.
And then we have a conflicting outcome coming out of
the Eleventh Circuit and the Atoms versus Saint John. How
any school board case that specifically said precisely the opposite.

(26:04):
A panel of the Third Circuit, Barbara Lugoo, writing for
the court, actually completely held the analysis to be a
different one, requiring under Title nine the separation of bathrooms.
To hold otherwise would to be rendering the educational opportunities
in unequal for these biological girls. So where does the
bathroom litigation play into this. How will the outcomes in

(26:29):
the West Virginia and Idaho cases, How are they actually
going to move forward on the sort of question of
whether or not bathrooms can also be separated based on sex.

Speaker 5 (26:41):
I think they're going to play an important role, And
it really comes down to that text analysis.

Speaker 3 (26:45):
If bosstoc comes into.

Speaker 5 (26:46):
Title nine, that's going to affect not just sports, but
profit spaces and not just bathrooms. I'd note that against showers,
overnight accommodations, think about traveling on sports teams, locker rooms,
things like that. And again the ultimate question is does
Title nine, either for sports or for private spaces, does
it allow sex distinctions or does it does it force

(27:11):
males who identify as women into those spaces in the
name of stopping sex discrimination. So I think it is
going to play an important role. And as you know,
this is changing rapidly. The Seventh Circuit had before this
had said you have to allow me also identifies as
females in women's restrooms. It's now reconsidering that decision after Scremetti.

(27:34):
There is a pending emergency petition at the US Supreme
Court right now coming out of the Fourth Circuit on
the bathroom issue.

Speaker 3 (27:42):
We're not sure what the Court's going to do with that.

Speaker 5 (27:43):
It just got filed, i think even last week, and
there's actually another current emergency motioning to peel out of
the nine Circuit on the bathroom issue. We ADF has
helped represent Idaho in that case, and we won at
the Nice Circuit against a facial attack, and then now
we've won again at the District Court on more as

(28:05):
applied challenge just to the bathrooms and not to showers
and other areas. So things are constantly changing. I think
that was one of the hope for the reason of
the court to take these two decisions is to provide
clarity not just on the sports issue, but on the
bathroom issue, because again Title nine explicitly doesn't reference restrooms

(28:27):
or showers, right, but there's a regulation that allows for that,
much like there's a separate sports regulation. So if you
start with first principles, you really almost have to play
out the analysis. Similarly, you're either going to say, hey,
Title nine allows for these sex distinctions.

Speaker 3 (28:43):
Or you're going to take a kind of case by
case approach.

Speaker 5 (28:46):
And say no to not requires you to allow males
who to devise the opp sex into these spaces.

Speaker 4 (28:54):
So it's interesting you mentioned the emergency petition right now
in the Doe versus.

Speaker 3 (29:01):
South Carolina case.

Speaker 4 (29:02):
Right, So this is coming out of the Fourth Circuit,
and again it's tackling Grim versus Gloucester County School ward
head on which remains of course binding precedent in the
Fourth Circuit. That's exactly why the Fourth Circuit determined as
it did that bathrooms that separated by biological sex were
a violation of Title line and the equal Protection clause.
So the state petitioner here is asked, basically the Supreme

(29:24):
Court to weigh in saying that it disrupts the status
quo in a preliminary posture in a case where the
plants are unlikely to prevail. Now, would you consider them
unlikely to prevail based on the fact that we've now
seen a circuit in the two women's sports cases, and
we've obviously got a little bit of clarity from the
Supreme Court on distinctions and the state's ability to legislate

(29:44):
for the safety and welfare of their own citizens. Coming
out of the Sucremmtting decision, what do you think happens
in Doe versus South Carolina In this emergen emergency petition.

Speaker 5 (29:52):
Yeah, it's always hard. Sometimes in particular happens on the
emergency docket. I mean, you could see, obviously the Court
has a lot of options. Try it can grant and
then hold in light of the what it decides to
do in the BPJ case, because the Fourth Circuit in
the South Carolina case cited the BPJ decision and the
GRIM decision as part of its analysis. Or I could

(30:13):
say too soon, or maybe the balance of the equities
are not favoring going to the emergency socket. It's a
bit hard to predict. I am hopeful on the merits.
As you noted, the Supreme Court on the Biden Title
non rule already addressed this issue on the emergency docket,
and every justice agreed, they unanizically agreed that the states

(30:36):
and the clients that we're representing in that issue in
those cases were likely to prevail on the merits that
bosstoc did not apply to type. So it's really gonna
be an interesting case to see what the Court does
and how it balances what it thinks about the merits
versus this type of procedural posture. I am just very
hopeful on the core merits issue, whether you look at

(30:56):
it in the private, you know, private spaces or the
sports spaces that were ultimately going to win today, I
think as the court essentially gave a forecast to in
that earlier emergency docket decision in Louisianna versus a Department
of Education.

Speaker 4 (31:12):
Yeah, we've got a question that I want your perspective
on from Michael, who asks whether or not you guys
have done any litigation in Massachusetts in a Title nine suit,
because specifically in Massachusetts at the state's Equal Rights Amendment
has been interpreted to give all biological mails the right
to participate in women's sports like swimming, in field hockey
where there are no men's teams. Now, I have an

(31:33):
answer to this, and I think it's germane to kind
of what we're seeing now in the litigation Department of
Justice has against the State of Maine in the first
circuit and against the State of California out in the
ninth Circuit. There's a souprimacy clause issue here. But I'm
interested as to your take. Have you experienced any of
this in Massachusetts? What's your answer is to whether or
not a state equal rights amendment can trump what's clearly

(31:53):
the congressional history and plain text of Title nine.

Speaker 3 (31:57):
Yeah, so absolutely no.

Speaker 5 (31:58):
I mean, I think it's pretty clear that Title nine
as a music cluses you would trump any local state laws.

Speaker 3 (32:02):
And I think what there's actually planned out.

Speaker 5 (32:04):
We don't have any litigation in Massachusetts per se, but
we do have litigation in Minnesota and New Hampshire. And
I mentioned the Soul case where what you see in
some of these Blue states is policies saying you have
to allow males into women's sports based on general identity
and not based on biological sex. So effectively, what they're

(32:27):
doing is turning women's teams into co ed teams, right
if you make it based on pure gender identity. And
in these states they don't even require, for example, a
rule that says you have to take hormone therapy for
a certain period of time. It's purely based on an
internal sense of self. Do you have this professional identity
then you can go into the women's sports team. And

(32:49):
we have argued in those cases, and there are other
cases that have made this argument sol being I think
the most prominent one is that you can't effectively turn
women's sports team into a co team that that volleys.
Title nind this goes back the regulations themselves.

Speaker 3 (33:05):
They say that states may.

Speaker 5 (33:08):
Provide separate sports teams, but then they go on to
say that states are schools that receive federal funding, they
must provide equal opportunity for women in the sports context.
So once you take that assumption that a that males
have physiological advantages as in general matter, then you couldn't
essentially eradicate women's sports or declare that there can't be

(33:32):
women's sports without taking away those equal opportunities from women.
And so that is going to be one of the
next issues that course are going to address. Not only
can states designate teams by sex, but must stay to
comply with Title.

Speaker 3 (33:49):
Knot right right.

Speaker 4 (33:51):
Let me switch to our equal protection discussion a little bit,
and then we'll allow other people a chance to win
with additional questions. But I do want to get to
the second half of the equation because we've talked extensively
about TITLELINE relative to bathrooms and sports and some of
the conflicting case law that we're seeing right now. But
let's go to the constitutional question because while similar, it
is a completely different analysis here, and the Court's going

(34:12):
to have to weigh different factors. So talk a little
bit about what the Supreme Court has traditionally held when
it comes to heightened scrutiny, right to intermediate level of
scrutiny more than rational basis, less than strict scrutiny, and
protected classes. Traditionally we've relied on that bright line of
immutable characteristics for an analysis here. Do you think, based

(34:35):
on the Court's history, that they're likely or unlikely to
recognize transgender status as a new suspect or quasi suspect class.

Speaker 5 (34:44):
Well, I think it's pretty unlikely given what was said
in the Scrimmetti decision. So that wasn't addressed head on
by the majority in the Scrimmtty decision with the concurrences.
Just as Alito Justice Barrett, I think Martin most interestingly
said that they did not think that transgender identity was
a protected class because it's not immutable. People can change

(35:04):
their gener identity. It's not discrete. You know, you have
gener identity B, so it can identifies male or female,
or non binary or many other gener identities that can
change over time. And I think along those same lines,
buts interesting, Justice barad said that we should actually look
at not just has there been private discrimination against a greep,

(35:25):
but has there been dj your legal discrimination over time
against groups. So that will be an interesting issue to
see play out. But to take a step back, the
first issue is does even make a distinction based on
gender identity, which.

Speaker 3 (35:40):
We don't think it.

Speaker 5 (35:41):
Does because again the Walls plain text just says you
need to designate sport teams by sex, so general identity
is irrelevant. But then it goes on that second the
backup argument being even if it does make a distinction
based on gender identity.

Speaker 3 (35:55):
You know, is that a protected class?

Speaker 5 (35:57):
As you know, the way we've historically done equal protection analysis,
you know, it's interesting that the fourteenth Amendment does not
mention sex or discriminivation on sex. The core has traditionally
done kind of an anti discrimination norm via the equal
protection Clause and has divided up based on is this.

Speaker 3 (36:15):
A protected class like race is the classic.

Speaker 5 (36:18):
Example, and if it hits a protected class, it gets
a height level of scrutiny.

Speaker 3 (36:23):
So for women it's by our sex.

Speaker 5 (36:25):
It's said that it does this medium level scrutiny, intermediate scrutiny.
Because the coret is acknowledged, it sometimes it's appropriate and
right to make sex distinctions, but sometimes it's not, and
I think that attracks our prior argument regarding Title nine.
I do want to put a pin on one interesting
issue in the equal protection analysis is really focused on

(36:47):
how you do equal protection analysis and intermediate scrutiny.

Speaker 3 (36:50):
Facial versus as applied.

Speaker 5 (36:52):
So, as I noted before, everyone here agrees that the
states can make distinctions based on sex generally sports. For example,
let's say you had a male who identifies as male
come in and want to.

Speaker 3 (37:04):
Plan on the women's sports team. Everyone in.

Speaker 5 (37:06):
Then that would comply with equal protection to prevent that male.
So Plainiff's response to that argument as well. Look, if
you just look at us individually, we take alas sex
hormones or we haven't gone through puberty. So if you
look at our particular situation, our particular facts, because we
have the same athletic ability as women, you have to

(37:28):
allow us in because it doesn't further your interests to
prevent us from playing women's sports if we have the
same athletic ability.

Speaker 3 (37:36):
Now we dispute those facts on a lot.

Speaker 5 (37:38):
We think that athletic ability by males is retained even
after puity blockers. But the I think the interesting legal
question is does that even matter for intermediate scrutiny. So
for strict scrutiny, it's well accepted that every application of
the law has to further the interest in the law.
They have to be the least restrictive meat, so it

(37:59):
has to be the narrowest tailored thing possible. But for
intermediate scrutiny, that's generally not the case. It's just whether
the law generally serves your interests. And so let me
give you an example. I think we can imagine scenarios
where a male that identifies as male just has low
athletic ability, or maybe they're taking they have a disability,
or maybe they you know, are taking some type of

(38:21):
drugs that lowers their testosterum level. Could the state exclude
those males from women's sports despite their taking those medications.
I think the answer is clearly yes, they can. So
why should the analysis be different in this situation?

Speaker 3 (38:40):
We think it shouldn't be.

Speaker 5 (38:41):
Because, again, the way intermediate scrutiny typically works is you
ask does the general classification generally work?

Speaker 3 (38:49):
Right?

Speaker 5 (38:49):
You don't ask does it work in every single scenario,
every single application.

Speaker 3 (38:54):
So I think that's going to be an interesting thing.

Speaker 5 (38:57):
The core we have guidance on is how to do
equal protection analysis generally and intermediate scrutiny. Do you focus
on the general classification or do you have to focus
on each individual? And if you have to focus on
each individual, that's really going to make sex separates sports impossible, right,
because you're gonna have to look at.

Speaker 3 (39:16):
Each person, every single one.

Speaker 5 (39:17):
Yeah, every person, every different sport, all the person's you know,
medical history, their physical ability. What effectively would do it
would prevent states from making sex distinctions and require them
to do a case back case physical ability analysis for
each individual. And we just don't think that that's how

(39:40):
you do equal protection outsis.

Speaker 4 (39:41):
Yeah, yeah, I would agree with that. You know, it's
interesting you were talking initially about the distinctions made in
these particular state laws, and if a law distinguish is
based on sex, it can't distinguish based on transgender status. Naturally,
it has to disregard transgender status. But even if it
did consider transgender status, the it would seem to me
that even if we argue for the sake of you know,

(40:06):
sort of a rhetorical exercise, that it did consider transgender
status and it did consider these individuals to be part
of a quasi suspect or a suspect class sufficient for
heightened scrutiny analysis. Could a state meet heightened scrutiny analysis
based on the interests of the biological women who are
also playing in these teams?

Speaker 3 (40:25):
Yeah, No, I definitely think so.

Speaker 5 (40:26):
And I think that goes back to the point of, like,
what level of generality are you looking at? Are you
looking at the general classification? Are you looking at the specific?
Now we think we meet both, and that goes back
to one of the disputes in the case between the
parties is if you look at the particular males in
these cases, you know whether they take hormone therapy or
whether they haven't gone through puberty. Do they retain a

(40:49):
physical advantage? We argue yes, But that goes to the
point of even if they don't, can the state make
a general classification that men and women are not sway
situated and for athletic purposes?

Speaker 3 (41:03):
You know, to think about it.

Speaker 5 (41:04):
Another way to think about it is because of classification
is based on sex, how often is that accurate? Well,
it's accurate ninety five percent of the time, So you know,
or even ninety nine percent of the time. So we
would argue that that easily meets intermediate scrutiny. And you know,
we shouldn't forget that the proof is in the pudding here,
right that if you read I think the Lower Court

(41:27):
of Penis is actually pretty interesting because they say, look,
there's no proof that men will compete in women's sports
in these states. I think that has turned out absolutely false.
And if you just read the news, you see report
after report after report. So if anything, Idaho and Western
Virginia have been proven absolutely correct of the need for

(41:49):
these laws. And to put this particular penel, and we
didn't even look at West Virginia. The male athlete there
in West Virginia has already beaten women, I think over
two hundred and fifty times separate women, and those numbers
are to continue to increase over time. So you do
see these reports and given that you have this type
of evidence that if you you know, if you don't

(42:12):
make sex distinction in sports, that you are going to
have women losing out opportunities, podium placements, scholarships, that the
states are absolutely able to meet their burden to show
these laws. Further substantial interest in protecting women.

Speaker 3 (42:30):
That's interesting. We talked a little bit about, you know, puberty.

Speaker 4 (42:33):
Blockers, cross sex hormones, sort of the muting of any
potential athletic advantages. I think the science is pretty clear,
based on what you and I understand to be the
case and the extent of reading and writing that we've
done in this space, that you know, there are some
characteristics that simply cannot be muted by hormonal modification one
way or the other. Whether it's wingspan, muscle mass, faster

(42:54):
muscle twitch response, bone.

Speaker 3 (42:56):
Density, or the like.

Speaker 4 (42:57):
These are particular questions for which there is sort of
competing scientific analysis. Now, I think it's fairly clear, but
you know, there are other perspectives individuals would say, you know,
you really do rule out a lot of these athletic advantages.
If you have an individual greed puberty starting on these
hormones or these puberty blockers, and then they should be
able to compete on level footing with biological females even

(43:20):
though they're biologically male. These are kinds of the questions
of public policy debate and scientific analysis that to my mind,
seem very likely to enter into the Dabbs Scrimmetti analysis.

Speaker 3 (43:34):
I can just sort of hear.

Speaker 4 (43:35):
The words of Chief Justice Roberts and Justice Alito ringing
in my head when they said questions, you know, hotly
debated questions of public policy should be left to the
democratic process, to the people in its elected representatives. Do
you think those kinds of questions will come up in
this analysis for the court as well?

Speaker 3 (43:52):
Yeah, I think so.

Speaker 5 (43:53):
I think the part in scrimmat that kind of rings
in my mind is they talked about how in the
medical context that you almost need to make certain sex
distinctions right for things to work.

Speaker 3 (44:04):
And that's the whole purpose of doubt.

Speaker 5 (44:05):
You know, you have to look at arguments for METI
was this law makes a distinction based on age and diagnosis,
not based on sex.

Speaker 3 (44:13):
Well, in some ways that has the.

Speaker 5 (44:16):
Same ring in the context of privacy and athletics because
sex matters. It matters a lot to who wins and loses.
So I think you will see the court be hesitant
to say you have to allow a male in two
women's sports. And I think this is one of the
problems I think, particularly with the Four Circuit opinion. So

(44:37):
to be clear, what the Four Circuit did is it
ruled an entered summary judgment for the plane is on
the Title nine plane, but actually on the equal protection claim.
It remanded and said, hey, there's a dispute of fact
about whether the particular plane if I had a physiological advantage.
But what that effectively means is that issue is irrelevant
for the Title nine issue. That even if BPG in

(45:01):
the situation or other males have a physical advantage, that
Title nine requires you to allow them into women's sports.
And that is a pretty far reaching analysis. Again, what
it effectively does attracts those states, those blue states that
have said, look, you have to allow anyone in based
on their internal sense of self their gender identity alone,

(45:23):
regardless of whether they take qual sex hormones or have
gone through puberty or anything like that. It totally depends
on that. So throughout this case you have a bit
of an interesting kind of conflict I think for some
of the plane of arguments. On the one hand, they
want to focus on gender identity as the sole determiner.
On the other hand, they want to focus on what

(45:45):
type of medical treatment you receive and does that level
the playing field? And you can't really have it both ways, right,
Either gender identity makes you equivalent and if that's the case,
then you don't have the same physical abilities. Or if
you have to take you know, cross sex hormones or
hormone therapy to equalize the playing field, well, people can

(46:06):
take those type of drugs for any type of reason.
For as I noted, you need to have the example
of someone who's taking chemotherapy, for example, and has to
take various drugs that lessen their physical abilities. That doesn't
mean the say has that we let them in to
women's sports, because again, if you start with the right premise,
which I think is the right way to do the analysis,

(46:27):
and you look at the classification generally and does it
generally further the stage's interest And here everyone agrees that
is a general matter, the states should be able to
limit women's sports to women, then it should just follow
naturally that they should be able to apply that in
particular situations to males.

Speaker 4 (46:46):
Yeah, I would agree with that, And I think this
is really at bottom, it's a question about again sort
of operation of the democratic process.

Speaker 3 (46:54):
Right.

Speaker 4 (46:55):
Once again, it's short just sort of of the same
ilk I would think of the job the Scrimmetti type decisions,
where again, does a state have an ability to democratically enact,
pursuant to the people's will through their elected representatives, particular
legislation designed to protect vulnerable populations and to ensure the
equality of all of them. And I think the clear
answer to that in the end is yes, although I

(47:17):
hearken back to Justice Thomas's opinion in Scrimmetti in which
he said, you know, this is part of the problem
when we're talking about these, you know, so called sort
of purveyors of gender medicine and so called gender affirming care,
what we sort of stand to lose when we defer
to the so called expert class. And I think there's
kind of a similar discussion here that we're likely to

(47:38):
possibly encounter when it comes to individuals who are talking
about the absence of athletic athletic advantage when it comes
to these biological men and women's sports. But I do
think it's something that will ultimately come up in time.
There is another question we have. Dan asks, how could
title mind require the separation of bathrooms, locker rooms, or

(47:58):
showers by gender identity? If the statue didn't allow separation
by sex, wouldn't it require co ed facilities regardless of
gender identity?

Speaker 3 (48:09):
Yeah.

Speaker 5 (48:09):
I mean, I think that's part of our argument and
part of the discussion we're having. That one reason why
I doesn't make much sense to import boss Stock into
Title knot because it has these far reaching implications.

Speaker 3 (48:20):
You know.

Speaker 5 (48:20):
To try to get a sense of the other side's argument,
I think their argument is like, look, Bostock looked at
the literal language because of sex in title seven. It's
similar language in title nine. So you have to do
what's called the butt poor cause analysis. Does you know,
does the distinction does the government action turn on someone
sex to notice someone sex? And they would say, well, clearly,

(48:44):
if you exclude a male who identifies as a female,
that turns on someone sex, and therefore Bostock should apply.
And that's why includes in your identity.

Speaker 3 (48:53):
You know.

Speaker 5 (48:54):
Another I think interesting argument embraced by the lower courts
in this case, which is really interesting, is to say
effectively that the very definition of biological sex discriminates based
on transgender persons. And so that goes back to my
point of the lower courts have said that this is
essentially a Jerrymander definition that it targets by definition, if

(49:18):
you define sex biologically, you're not allowing you're not defining
sex by gener identity, and therefore it discriminates based on
gener identity. I think that's a bit circular, and I
think it's pretty radical because what that would mean is
essentially conflate the two concepts and make it impossible to
ever make a distinction based on biological sex.

Speaker 3 (49:41):
In that respect.

Speaker 5 (49:42):
This is probably the case it's closest to the legal
issue of you know, what is a woman?

Speaker 3 (49:46):
Right?

Speaker 5 (49:48):
That's and in fact, when we're litigating the case, the
BPG case, we lost at the plemarian junction stage at
the district court, but we actually convinced the district Court
at sumaryjudgment to reverse himself and to uphold the law,
which is pretty unusual. Yeah, And he framed that analysis
of you know, essentially this case decides like what is

(50:10):
the meaning of sex? What is the meaning of a woman?
And that obviously raises very important legal ramifications, cultural lamifications,
you know, of where the court will go with it.
But it just highlights that it's a bit of an
unusual challenge that the planets are bringing because they're not
challenging sex distinctions generally, they're challenging the definition of what

(50:33):
it means of what sex means.

Speaker 3 (50:38):
So it'll be interesting to see how the court analyzes that. Yeah,
I think so as well.

Speaker 4 (50:43):
Seeing no further questions from the audience, this has been
a great discussion. Again, probably to my mind, you know,
there there's another very big case that I'm keen to
sort of watch the outcome in and chiudsers assell As
are also an ADF case that I'm very much looking
forward to. But to my mind, this is sort of,
you know, the tip of the spear when it comes
to the Court's term.

Speaker 3 (51:03):
We don't have oral arguments yet schedule, do we No,
we do have oral arguments.

Speaker 5 (51:07):
I think our intuition is the arguments will probably happen
in January. That's what we're expecting just given the amount
of cases.

Speaker 3 (51:15):
The court's accepted so far. But we haven't have a
firm date.

Speaker 5 (51:18):
We're hopeful that they'll probably be set on the same day,
back to back, and that way the Court can address
all these important issues that we've been talking about that
have really been percolating in the lower courts for over
a decade that you know, parents, students. I think the
one issue that everyone agrees on is that we need
clarity on this issue. Yeah, and because it's affecting you know,

(51:40):
schools starting back up for so many of us. It's
really affecting kids and particulary women and girls across the country.
And I think the court was right to step in
and really set the record straight that I don't know
any protection they do allow for protecting women providing equal
opportunities in athletics.

Speaker 3 (51:59):
Thanks so too.

Speaker 4 (52:01):
Seeing no further questions from the audience, Marco, I can
kick it back over to you.

Speaker 2 (52:06):
Well, thank you both for that fantastic discussion and the
benefit of your time and expertise today. On behalf of
the Federal Society, I'd also like to thank you or
audience for joining us. We greatly appreciate your participation. For
information on more upcoming events, please visit our website or
all major social media platforms at FEDSOC. On that note,
we're a jerones.

Speaker 1 (52:28):
Thank you for listening to this episode of FEDSOC Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the practice groups, and to
become a Federal Society member, please visit our website at
fedsoc dot org.