U.S. Supreme Court To Hear 2 Landmark Women’s Sports Cases On What 'Sex' Means
"A Supreme Court ruling in these cases could finally bring long-awaited clarity and legal protection for women’s athletic opportunities." - ICONS, at the forefront of campaigning for women's sport to be preserved for females only
The United States Supreme Court is to hear two landmark women’s sports cases its session: Hecox v. United States (Ninth Circuit) and B.P.J. v. West Virginia (Fourth Circuit) - both aimed at clarifying what “on the basis of sex” truly means.
Rulings will determine whether women can be protected as a distinct sex class under the law. That has already been ruled on in the UK:
Craig Lord
ICONS, the Independent Council on Women's Sport, has filed an amicus brief (“friend of the court” brief) in both cases, connecting aligned experts and athletes who share their mission "to defend female sports because men don't belong in women's categories". Says ICONS:
"A Supreme Court ruling in these cases could finally bring long-awaited clarity and legal protection for women’s athletic opportunities."
- You can read the full and illuminating amicus brief here*
- - & the brief dates back to October 2024 and 'government' refers to the previous administration
Here is the Amici (friends) instrument explained, with the names of swimmers and other sports people who are supporting the campaign:
Amici are the Independent Council on Women’s Sports (ICONS) and its members and 135 female athletes, parents of female athletes, coaches and sports officials.
ICONS is a network and advocacy group comprised of current and former collegiate and professional women athletes, their families and supporters who agree with former Justice Ginsberg that “[physical differences between men and women... are enduring [that] the two sexes are not fungible [and that] [i]nherent differences between men and women . . . remain cause for celebration[.]” - United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 2276, 135 L. Ed. 2d 735 (1996) (“VMI”) (cleaned up; citations omitted).
Individual amici hail from all levels of sport from high school to college and from professional to Olympic sport and include: Martina Navratilova, 59x Grand Slam Champion in Tennis; Donna de Varona, Olympic Gold Medalist in Swimming, world record holder, Olympic broadcaster and long-time Title IX advocate; Laura Wilkinson, Olympic and World Champion in Diving and parent; Summer Sanders, Olympic Gold Medalist; Jill Sterkel, Olympic Swimmer, world record holder, and University of Texas head swim coach; Kylee Alons, 2-time NCAA national champion in Swimming, 31x All-American and competitor against a male athlete in an NCAA women’s national championship; Grace Countie, 22x All-American in Swimming and competitor against a male athlete in a NCAA women’s national championship; Riley Gaines, 12x All- American in Swimming and competitor against a male athlete in a NCAA women’s national championship; Reka Gyorgy, Olympian and All-American in Swimming and competitor against a male athlete in an NCAA women’s national championship; Kaitlynn Wheeler, All-American in Swimming and competitor against a male athlete in an NCAA women’s national championship; Brooke Slusser, currently co-captain on NCAA Division I San Jose State University women’s Volleyball team, on which a male is a team member; Jennifer Sees, NCAA Track & Field athlete, high school track coach, and parent of NCAA Soccer player; Pam Etem, Olympic Rower; Madisan Debos, NCAA Track & Field athlete; Evie Edwards, Cyclist, mother of an elementary-age female Cyclist; and numerous other NCAA, Olympic, and Paralympic female athletes, coaches, parents and sport officials.
Reflecting their experience, amici have an interest in the preservation of women’s only sports teams and the female category in sport.
SUMMARY OF ARGUMENT
Recognizing biological differences between the sexes and protecting women’s spaces from male intrusion are foundational for women to succeed in sports and in life.
However, in this case and in others like it, including Little v. Hecox, No. 24-38 and in West Virginia v. B.P.J., No. 24-43 Vide 24-44, in which petitions for writs of certiorari are currently pending, as well as through the Department of Education’s recently proposed Title IX regulations, the federal government seeks to constitutionalize gender identity by extending this Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020) to Equal Protection Clause analysis and to the application of Title IX of the Education Amendments of 1972. The Government’s move would turn the Equal Protection Clause on its head, depriving women of equal rights and opportunities in comparison to men in sports and undermine the utility of Title IX by erasing legal recognition of biological differences between men and women that justify the protection of women and women’s spaces.
The Government’s position in this case, the decisions of the Ninth and Fourth Circuit Courts of Appeal in Hecox and B.P.J. and of the district courts which have overturned state laws which attempt to protect girls from sports competition from boys, the Biden Administration’s Title IX regulations, and the transgender eligibility policies of the National Collegiate Athletic Association (NCAA) currently roiling women’s collegiate sports, all begin from the same counterintuitive, unscientific and legally flawed premises: (1) that a man can be transformed into woman for all relevant purposes simply by reducing the man’s testosterone level, and (2) that biological sex is irrelevant to Equal Protection analysis and the application of Title IX. Consequently, the Court’s decision in this case is integral to a proper resolution of all of these issues.
The Court’s recent rejection of the Biden Administration’s request for stay in Dep’t of Educ. v. Louisiana, finding 9-0 that the parties challenging the
Administration’s Title IX regulations were likely to prevail on the merits of their claim that the newly adopted Title IX regulations’ premise that “sex” and “gender identity” are equivalent is not well founded, should guide the Court’s decision here. Dep’t of Educ. v. Louisiana, 144 S. Ct. 2507, 2509–10 (Aug. 16, 2024) (agreeing Louisiana was “entitled to preliminary injunctive relief as to three provisions of the rule, including the central provision that newly redefines sex discrimination to include discrimination on the basis of sexual orientation and gender identity”).
Harms brought about by the Government’s new interpretation of Equal Protection are (and will continue to be) dramatic and far reaching until finally rejected by this Court. The legal revolution pursued by the Government is upending protection for women in many spheres not just sports. But the focus of this brief is the impact on sport. Amici explain how the impact of constitutionalizing gender identity as an extension of Bostock is opening women’s sports and safe spaces to biological males, and if accepted by this Court will end the Title IX debate and gut longstanding protections for women under both Equal Protection and Title IX.
It is the experience of amici that legal protections giving women the opportunity to take part in and succeed in sport are essential to the advancement of women and depend on the law’s basic ability to distinguish between women and men and courts’ capacity to evaluate, compare, and equalize the opportunities of the former in comparison to those of the latter. Amici urge the Court to uphold these longstanding protections now under relentless assault.
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Craig Lord
