Chapter 1: What landmark Supreme Court cases are being discussed regarding women's sports?
That was the scene outside the U.S.
Supreme Court Tuesday when the justices heard arguments on two landmark cases being considered together, the ACLU v. West Virginia and Idaho's Little v. Hecox. Both cases center on the question of whether states can enact laws to protect girls' and women's sports by barring males from competing in them.
Pro-transgender activists argue that it's discrimination to keep men who identify as women out, while the pro-women sports side argues that common sense, science, and Title IX and the Constitution are on their side.
While not all oral arguments in cases offer fireworks, several moments from Tuesday's session went viral, including when the pro-transgender side failed to define what makes a boy or a girl. We do not have a definition before the court. and when Justice Brett Kavanaugh made clear that sports are ultimately a zero-sum game. And I think we have to recognize on both sides the zero-sum.
It's not like, oh, just to add another person to the team. That's not how sports works. It's someone else that's going to get disadvantaged.
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Chapter 2: What arguments are presented by pro-transgender activists in these cases?
In this episode, Alliance Defending Freedom's Kristen Wagoner joins us to discuss the key moments from the arguments and why women's sports advocates are feeling more energized than ever. I'm Daily Wire executive editor John Bickley with Georgia Howe. This is a special LegalWire edition of Morning Wire.
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Chapter 3: How do advocates for women's sports respond to the arguments presented?
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Chapter 4: What were the viral moments from the Supreme Court hearing?
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Joining us now to break down what we heard in oral arguments this week is Alliance Defending Freedom President and CEO Kristen Wagner. Kristen, good to see you again. Thanks for coming on.
Nice to see you. Thank you for having me.
So this was a massive week for women's sports. We at The Daily Wire were on the ground there outside the Supreme Court. It was a pretty remarkable sight. There was the pro-women's sports advocates. There were the transgender activists. There were snipers positioned there to protect people. It was intense. But there was also a lot of optimism from the pro-women's sports side coming out of this.
In fact, let's start there before we talk through some of the highlights. Big picture, what was your takeaway from how the justices responded to both sides of the cases?
I'm optimistic about how the justices will rule. I do think that they will rule to uphold equal opportunity and fairness and safety for women. And that's thrilling after such a long time of not having it on the field.
Now, there are 27 states that have protections for women. 23 do not. They often actively force schools to accept boys and girls sports. So major ramifications for every single state, of course. Briefly, if you would, can you summarize these two cases for us? First, they're being argued together because they're effectively the same case.
And in both cases, the state's attorneys general are defending the state's laws and ADF is helping them do so. What do listeners need to know for context here?
Alliance Defending Freedom has been representing female athletes for the better part of 10 years.
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Chapter 5: What is the significance of the justices' responses during the hearing?
Some are in states that are protecting women and others are in states that are violating their rights. What the issue was before the Supreme Court yesterday involved whether states have the right to protect women's equal opportunities on the playing field. So it's the 27 states and whether states can proactively do the right thing.
In terms of the 23 states, we heard at oral argument some discussion about the justices kind of thinking ahead what comes next and how will this ruling play out in those other cases as well.
And in terms of the two states, what are the two laws that are being defended here?
Essentially, they are Fairness in Women's Sports Act or Save Women's Sports Act. They have different names, but they're all focused around ensuring that male athletes are not playing in the female category. And that can occur both at the collegiate level, but also we can think of high school and middle school levels. There are two laws that are in play, one from West Virginia, one from Idaho.
We have the privilege of standing alongside the West Virginia and Idaho attorneys general as they defended their laws. But we also represent three female athletes in these cases. And two of those athletes had to play multiple times or had to run against a male athlete multiple times. And that male athlete actually took the Big Sky Championship away from another deserving female athlete.
We also represent Lainey Armistead out of West Virginia, who went to school on a scholarship. And under Title IX, there are a finite number of scholarships that you can get. And so every time one of those scholarships goes to a man in the women's category, a deserving woman doesn't get that scholarship.
Ryan, so let's get to the highlights from Tuesday. A lot went on. We said at the top of the show, a lot of oral arguments don't go viral, but that's not the case for what we heard on Tuesday. A lot of moments really made the rounds online. What were some of the moments that you felt really defined Tuesday's session?
First and foremost, it was just how the ACLU was running away from their own arguments that we've been litigating in the past 10 years. They are scrambling as fast as they can because they don't make sense. And even the lower court decision below out of the Fourth Circuit Court of Appeals in the West Virginia case, they basically acknowledged the Fourth Circuit got that wrong.
They didn't even try to defend it. They also refuse to define what sex is. And if you're unwilling to define what sex is, it makes it awfully hard to prove sex discrimination, which is what these arguments hinge on.
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Chapter 6: How do the cases impact state laws regarding women's sports?
But two, in certain parts of the argument, they actually did say, we're not challenging the difference between male and female. And so then Justice Alito took them through and said, well, then essentially, what are you challenging? What is the issue? Because the law protects against sex discrimination.
And in the end, you can hear the advocate say that essentially, they're the ones that are willing to engage in discrimination on the basis of gender identity because they're saying, well, it's good enough. If you take testosterone suppressants and puberty blockers, you should be treated as a woman.
But if you self-identify and you haven't taken those steps, then you can't be treated, even if you identify as the opposite sex. So I think Justice Alito is highlighting in that exchange kind of the incongruity of the arguments. You can't have it both ways.
Related to that, one of the moments that stood out to me was when the ACLU attorney acknowledged that it's not actually bigoted to recognize the differences between men and women. How do you see that in terms of legal arguments?
Well, in court, the ACLU has acknowledged that they aren't going to call those of us who believe in the male and female categories as bigoted. But if you stood outside on the court steps like Daily Wire did, I'm sure that you were hearing some names being called. We know what's going on in the public square, but the decorum of the court is such that you can't make those allegations.
Justice Alito was right to bring it out and to call it out and to, again, just reaffirm that these categories mean something. Another interesting aspect of the case is that, you know, they essentially claim there should be special exemptions, special treatment rather than equal treatment. And the Equal Protection Clause requires equal treatment.
And so I think you could hear Justice Alito getting into those questions to also demonstrate to the rest of the court that there is equal treatment here and that treatment is between the sexes, which is what matters.
All right, suppose this school that has a boys, let's say, track team and a girls track team. the school has that and a student who has the genes and the reproductive system of a male and had those at birth and has never taken puberty blockers never taken female hormones never had any gender altering or affirming Surgery says, nevertheless, I am a woman. That's who I am.
Can the school say, no, you cannot participate on the girls' team? Sorry, so you're just a birth sex male who has all the advantages of sex male hormones, and can the school borrow him from the woman's team? Yes, they can. But that person, is that person not a woman in your understanding? If the person says, I sincerely believe I am a woman, I am in fact a woman. Is that person not a woman?
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Chapter 7: What are the specific laws being defended in West Virginia and Idaho?
And that's the rationale for the regulation. And so that's the way we would be testing that hypothetical. Well, the reason I'm asking has to do with discrimination on the basis of transgender status. So what you seem to be saying is, yes, it is permissible for the school to discriminate on the basis of transgender status.
There's great irony in that the ACLU just launched its campaign called More Than a Game, which is supposed to continue to push on resisting biological reality on the playing field. And it was clear that Justice Kavanaugh understood what that meant in the courtroom as he laid out for the advocates that this is essentially a zero-sum game.
And it's not just about trophies or podium spots, but about whether girls can even make the team, whether they even get on the roster, and how much that matters to them.
It's kind of a zero-sum game for a lot of teams. And someone who tries out and makes it, who is a transgender girl, will bump from the starting lineup, from playing time, from the team, from the all-league, and those things matter to people big time. will bump someone else. And so one way to resolve it, as you say, is the facts, try to figure out, is there really a competitive advantage?
I think we're going to get a lot of scientific uncertainty about that, a lot of debate about that, a lot of different district courts. The other way on the wall, one way on the wall is, okay, well, sex in Title IX and in Javits meant biological sex and it's up to Congress to adjust that going forward if they want, given as you say, and your co-counsel said earlier,
You know, people are learning more about this, and maybe there really is no advantage. Well, if that's true, and some states are operating under that basis, that's the way to go. But for now, at least the law says biological sex. And I think we have to recognize on both sides the zero sum. It's not like, oh, just to add another person to the team. That's not how sports works.
It's someone else is going to get disadvantaged. So I just want you to address that.
That was the one moment where we heard something about the girls that are impacted, and I was thrilled to hear it. But I hope that the rest of the justices understand what's at stake.
Now, there was some concern raised from the right side of this argument, the pro-women's sports side, about the language that the justices used, left-wing gender identity language to be specific. Here's some of that impact.
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Chapter 8: What are the implications of the court's ruling on female athletes?
But the court is a court of precision. It's a court of words. And so when you refer to a cisgender girl as if that's something different than a girl, I think that that sort of gives away the argument in some ways. We have to get back to a place where we are looking at men and women differently.
And if we're talking about those who identify as the opposite sex, then we say that it's men identifying as women. But there's no such thing as a cisgender girl, and there's no such thing as a transgender girl.
Like you said in the end, you're seeding the entire argument if you seed the language, though maybe we shouldn't read too much into this. That said, the questions from the judges were clearly leaning very heavily to the pro-women's sports side. Were there any other patterns that you witnessed on Tuesday that stood out to you?
I wouldn't read too much into the language, but I do think that it's important we continue to insist on biologically correct terms. And what I didn't hear in the courtroom that really just struck me as being so disappointing, I didn't hear about the women. And actually, it didn't disappoint me. It angered me. It's probably the first time I wanted to stand up and shout, what about the women?
Not just the women in this case, but the male athlete in West Virginia displaced 423 girls 1,100 times and took 57 medals away from them. Five girls protested from another team. And in their protest, they were punished by their school. Their school didn't stand up for them.
And then, of course, we have Adelaide Cross, who was on the team and suffered sexual harassment and even threats in the locker room. And we have the UN study that says 900 medals were taken in competition as well. So there was so much focus on what the ACLU was saying, a boy who identifies as a girl who wants to play sports, but no focus on the rights of women.
And we should not have to surrender our rights because a male is identifying as a woman.
What about particularly from the progressive side, the left-wing side of the court? Were there any questions from that side that you were encouraged by in terms of the pro-women arguments?
I think there was general consensus that males have an advantage over women. And so I was encouraged that Justice Kagan, as an example, was grappling with what the argument was of the ACLU in terms of under the Equal Protection Clause, how they would actually prove without completely messing up the constitutional standards that are already in place.
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