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Posted on 06/25/2025 7:39:35 AM PDT by Red Badger
The Supreme Court left unresolved whether states can give primacy to biological sex over gender identity, a question that has divided lower courts nationwide, in its blockbuster decision upholding Tennessee's ban on medicalized gender transitions for youth, though individual justices in the majority promoted their own conclusions in concurrences.
The most powerful nine jurists in America will consider whether to fill in the gaps from U.S. v. Skrmetti this week when, for the third time, they review petitions by West Virginia and Idaho to overrule courts that struck down their "fairness in women's sports" laws that prevent males from participating in opposite-sex school sports.
The red states filed supplemental briefs ahead of Thursday's judicial conference urging the high court to hear oral arguments rather than "grant, vacate and remand" the cases to lower courts to apply the new Tennessee precedent, which they said would prolong the split among at least eight federal appeals courts and put schools in some jurisdictions at legal risk.
Their co-counsel at the Alliance Defending Freedom speculated SCOTUS "may have been holding" the red states' petitions until it ruled on Tennessee's ban on so-called gender-affirming care for minors, which ADF defended alongside the Volunteer State at the high court.
Agreeing to hear the cases rather than send them back would be a timely boon for advocates of sex-based athletic participation, with Monday's 53rd anniversary of Title IX.
Riley Gaines, who lost her NCAA women's swimming trophy to male transgender swimmer Lia Thomas, just partnered with XX-XY Athletics on a clothing line to mark the anniversary of the 1972 civil rights law that ushered in an explosion of girls' sports and is now the rallying cry of advocates for female-only competition.
Jabbing girls to compete in their own sports
"In recent months both the federal government and the NCAA have announced policies excluding male athletes from female competitions," Idaho's brief notes, referring to President Trump's February executive order "Keeping Men Out of Women’s Sports" and NCAA's transgender participation policy update to align with Trump's order.
Because the 4th U.S. Circuit Court of Appeals blocked the West Virginia law, states and public universities in its jurisdiction are stuck between "a rock and a hard place," the West Virginia brief says: They can't follow NCAA policy without losing in court and they risk losing federal funding if they abide by the 4th Circuit and let males compete on girls' teams.
Remanding creates a known "dilemma," the Mountain State argued, noting the district court rebuffed a request by the Harrison County Board of Education to explain how it can reconcile Trump's order with the judge's injunction.
"Federal courts should not be constitutionalizing 'circulating testosterone' as the gauge for assigning athletic teams," the Idaho brief says, referring to the 9th Circuit's mandate that "athletic teams be divided based on circulating testosterone levels" – one of many factors that give males athletic advantages over females – rather than sex.
"If states hope to preserve some semblance of a level playing field for women and girls, they must do it by subjecting those women and girls to intrusive blood draws," Idaho said.
"This case presents the equal-protection question" with a male college athlete, Lindsay Hecox, "and that [West Virginia] case presents the Title IX issue" with a K-12 male athlete before puberty, Becky Pepper-Jackson, the Gem State said.
"The cases are currently on the exact same track and ready to be resolved together this next Term," just as SCOTUS granted two petitions to address equal-protection and Title VI racial discrimination claims in the Harvard-University of North Carolina consolidated affirmative action case that functionally ended racial admissions preferences, according to Idaho.
If SCOTUS remands both, "they may not come back before the Court again at the same time or in similar postures, preventing the Court from addressing at once all the relevant legal issues in all the relevant educational settings" and permanently foreclosing "medals, podium spots, and opportunities to compete in their own sports" for some females, the brief said.
"Girls deserve a safe, fair playing field today– not years from now –and the [4th Circuit] ruling’s present harm to women and girls is stark," West Virginia said.
Defining sex as subjective 'fundamentally changes the equal-protection analysis'
By ruling that Tennessee's law did not make "sex-based classifications" in prohibiting puberty blockers, cross-sex hormones and surgery only as treatment for minors with gender confusion, SCOTUS ducked the central issue in the Idaho and West Virginia cases, the briefs say.
The majority provided no guidance to lower courts at odds with each other on whether female-only participation inherently classifies based on gender identity, as the 4th and 9th Circuits say, or does not, as the 11th Circuit said and the 2nd and D.C. Circuits "appear to agree," West Virginia said.
The Richmond, Va.-based 4th Circuit then "followed its own precedent" – shared with the 7th, 8th and 9th Circuits – and deemed transgender individuals "a quasi-suspect class," contrary to the holdings of the 10th and 11th Circuits, the brief said. It noted Tennessee concurrences by Justices Samuel Alito and Amy Coney Barrett raising this issue.
The 6th Circuit also rejected the quasi-suspect class finding, the Idaho brief says. (The two states don't always refer to the same precedents by circuit.)
Defining sex as a subjective category, as the courts that ruled for transgender students have done, "fundamentally changes the equal-protection analysis" by saying gender-confused males are "similarly situated" to females, Idaho said.
It noted the 4th Circuit gave credence to Pepper-Jackson's claim that gender-confused males "possess no inherent, biologically-based competitive advantages" over females without gender confusion "when participating in sports."
Unlike the Tennessee case, "the parties agree that Idaho’s Save Women’s Sports Act classifies based on sex," which the 9th Circuit called a "pretext to exclude transgender women from women’s athletics," Idaho's brief said.
Both states argue the circuit split between most of the nation's federal appeals courts won't go away even if the 4th and 9th circuits change their minds, "needlessly wasting valuable lower-court and party resources on remand" if SCOTUS doesn't hear them now.
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All the judges on earth can’t turn a man into a woman, any more than they can turn a frog into a prince. But we have leftist appointees who think they are smarter than God.
“The Supreme Court left unresolved whether states can give primacy to biological sex over gender identity”
The Supreme Clowns left unresolved whether states can give primacy to biological sex over gender identity
There, fixed it
Just goes to show the abject stupidity of "preserving a level playing field" in any competitive endeavor.
The inevitable end of all this is going to be the complete elimination of all scholastic sports in government-funded schools. Sports will be relegated to private clubs and outside organizations that have no affiliation with these schools.
I don’t see a lot of trans football players.................
“The Supreme Court left unresolved whether states can give primacy to biological sex over gender identity, a question that has divided lower courts nationwide,...”
How did we ever get to this point? Beyond sad.
The entire Title IX women’s sports equality concept ignores human nature. Human males need sports as an outlet for their aggressive nature. Human females do not.
Flame away.
I’m still of the mind that these guys who are stealing the scholarships that rightfully belong to biological women will suddenly after they graduate with their free college educations will have a change of heart and be ‘cured’ of their heartbreaking mental illnesses.............🙄
I think it’s a scam to get free college scholarships and when they graduate they will be ‘cured’...............
Here’s an idea.. Stop calling men “women” and the problem solves itself. Then you no longer have a complicated problem, you have a simple problem - can men participate in women’s sports under title IX? No.
You’ve created the complicated problem, uncreate the complicated problem by using plain language.
Keep guys out of women’s sports. Period.
By ignoring the biological differences between men and women. And for those who consider my viewpoint to be misogynistic, I have a question: If you were trapped in a burning building, would you want this to be your hope for rescue?
A functioning Congress is the proper way to resolve this issue, not the judiciary.
Unfortunately, Congress has been broken for decades and prefers to abdicate tough political decisions to the other branches. Particularly the one which doesn’t have to face the voters.
Yep, doubtful that any of those gals can carry a 200lb man/woman on their shoulders...
All of Nature gives primacy of biological sex over gender identity. Nature doesn’t care what you think you are.
Determining male from female is not rocket science. For the courts and universities to have such difficulty making these distinctions undermines their judgment and claims to know anything worth knowing — with their worthless degrees and awards.
“How did we ever get to this point?”
It’s the end-stage of the 100 year Communist Project.
that happens to coincide with the 19th amendment ...
The “girl’s sports” issue is stupid.
Not because boys should be allowed to beat up girls, of course they should not.
It’s stupid because it’s asking for a carve-out, a special exception to the major premise, which is that a man can become a woman, and that man can then can through litigation and administrative procedures require others to accept that he is now a woman, to treat him as a woman, to confess this lie in public and in front of their own children, as in when their child is in a classroom with a teacher who is now pretending to be the opposite sex, EXCEPT we won’t let that man compete in womens sports.
The UK Supreme Court, in a country where trans ideology is very well entrenched, much more so than here, recently ruled “there are only two sexes, men and women, and that there is no right of action against the state or against individuals to compel accepting a change in one’s sex”.
If the UK Supreme Court could do that, it should be simple for our Court to do so as well.
.
I’ll go one step further. Title IX as applied to sports is no different than race-segregated bathrooms, buses and water fountains.
It may not be so simple. Remember that Roberts is the cleverest bitch on the planet, and ACB is a squish. There could be nuances that you just don't comprehend. It could end up being a tax or some such.
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