Justice Alito Challenges Attorney To Define A Woman: “We Do Not Have A Definition For The Court”
Kathleen Hartnett, the attorney for a transgender student athlete, was unable to define what a woman is when questioned by Justice Samuel Alito during Supreme Court oral arguments on Tuesday over state laws banning transgender in women’s sports. Block argued that such a definition should not be used when enforcing Title IX.
SUPREME COURT ASSOCIATE JUSTICE SAMUEL ALITO: Well, to pick up on the issue of discrimination on the basis of transgender status, let me just go back to-let me go to some basics. Do you agree that a school may have separate teams for a category of students classified as boys and a category of students classified as girls? KATHLEEN HARTNETT, ATTORNEY FOR TRANSGENDER WOMAN LINDSAY HECOX: Yes, Your Honor. ALITO: If it does that, then is it not necessary for there to be, for equal protection purposes, if that is challenged under the Equal Protection Clause, an understanding of what it means to be a boy or a girl or a man or a woman? HARTNETT: Yes, Your Honor. ALITO: And what is that definition? For equal protection purposes, what does it mean to be a boy or a girl or a man or a woman? HARTNETT: Sorry, I misunderstood your question. I think that the underlying enactment, whatever it was, the policy, the law, the-we’d have to have an understanding of how the state or the government was understanding that term to figure out whether or not someone was excluded. We do not have a definition for the Court. And we don’t take issue with the-we’re not disputing the definition here. What we’re saying is that the way it applies in practice is to exclude birth sex males categorically from women’s teams and that there’s a subset of those birth sex males where it doesn’t make sense to do so according to the state’s own interest. ALITO: Well, how can you-how can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes? HARTNETT: I think here we just know-we basically know that the-that they’ve identified pursuant to their own statute, Lindsay qualifies as a birth sex male, and she’s being excluded categorically from the women’s teams as the statute. So we’re taking the statute’s definitions as we find them and we don’t dispute them. We’re just trying to figure out do they create an equal protection problem.
