ACLU lawyer objects to sex definition in trans Supreme Court case

During Supreme Court oral arguments in West Virginia v. BPJ on trans athletes in women’s sports, U.S. civil liberties attorney Joshua Block suggested that “sex” should not be legally defined. Block then fled questioning when asked to explain why after the hearing.

Block represents West Virginia trans teenager Becky Pepper-Jackson, who sued the state in 2021 to block its law banning biological males from participating in women’s sports. Pepper-Jackson and her mother were in the courtroom Tuesday to watch the lawyer argue that the definition of sex should not be used in the court’s decision.

Block’s statement comes as she explains why West Virginia’s law that prohibits biological males from participating in women’s sports violates Title IX, then asserts that the purpose of Title X is not to have a precise definition of sex.

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“Regardless of how the court resolves this case, I really urge the court not to do so on the definition of the sexual argument,” Block said, later adding. “I don’t think the goal of Title IX is to have a precise definition of sex. I think the goal is to make sure that sex is not used to discriminate by denying opportunities…I wouldn’t seek to classify BPJ as male or female, I think the question is, ‘are they being denied an opportunity because of that classification?'”

Block then told Justice Elena Kagan “don’t give a definition of sex” when asked: “If we didn’t want to prevent a different state from making a different choice than West Virginia, what should we not say or what should we say to prevent that from happening?”

Block responded: “I wrote ‘don’t give a definition of gender’ and I also said ‘I wouldn’t decide this assuming Title IX entitles single-sex teams in the rulebook. Single-sex teams are optional, they are not mandatory.’

Block added that he was concerned that the court’s potential ruling in the case would assert that Title IX means something it does not mean.

Chief Justice John Roberts questioned Block for making the suggestion.

“Title IX prohibits discrimination on the basis of sex, it’s a legal term, it has to mean something,” Roberts said. “You’re saying here that there is discrimination based on sex, and how can we decide that question without knowing what sex means in Title IX?” » asked Roberts.

“That must mean something!”

Block then responded by suggesting that gender discrimination could be applied to a man who acts feminine, then admitted that biological differences play a role in defining gender.

“I think if someone said, ‘I’m going to discriminate against anyone who acts feminine’…I think that would be gender discrimination,” Block said. “But I wouldn’t say that it’s not covered by Title IX…so I’m not saying that biological differences aren’t part of sex, but I’m saying that sex has broader connotations…

“There is a group of people who are assigned male at birth, for whom being placed on the boys’ team is detrimental.”

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Block then admitted that sex should be defined for the sake of West Virginia v. BPJ as biological sex, but that he was concerned it could be misused in other cases.

“I think in this case you can accept that we’re talking about what they called biological sex. I think that resolves this case. I was just talking about other potential cases,” Block said. “This could have downstream consequences that even the United States doesn’t want the court to prejudge here.”

After the hearing, PK Press Club Digital asked Block what his definition of “sex” was. He refused to give a definition.

“I don’t think that’s what’s at issue in this case. What’s at issue in this case is fair treatment for all people, including cis and trans people, and that’s what we’re hearing about today,” Block responded.

PK Press Club Digital attempted to ask Block why gender should not be defined in the case, but the lawyer walked away and answered no further questions. The question about the definition of sex was the only question Block answered during the post-hearing scrum before finishing his speech to reporters.

John Bursch of the Alliance of Defending Freedom, the law firm representing female athletes and the state of West Virginia, said Block’s insistence on not defining gender was “completely bizarre.”

“It’s completely bizarre. I don’t know how you can decide a case interpreting sex under Title IX and the Equal Protection Clause by not defining sex,” Bursch told PK Press Club Digital after the hearing.

“Sex, when Title IX was passed, meant biological sex, the entire statute was written with biological distinctions, it even refers to each of the sexes. I don’t know how the court can do that, and it says a lot about what they were thinking and the ACLU felt that they had to tell the court not to define sex for them to survive this case.”

Earlier in the hearing, Block downplayed the impact of Pepper-Jackson’s presence on a girls’ cross country team on other girls, arguing that cross country is a sport that has no cuts. Justice Neal Gorsuch responded by pointing out that many sports are undergoing cuts and that those sports are also affected by the decision in this case.

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Block responded by saying that many female athletes fail to make their team due to being outperformed by other female athletes, then admitted that if a female athlete is supplanted by a trans athlete, it’s “unfortunate.”

“Nobody likes to lose, no one likes to not be on the team. A lot of times people don’t make the team, cisgender girls don’t make the team when they’re competing against other cisgender girls all the time, and I think the question is whether it’s an unfair advantage because a transgender girl participated,” Block said. “And if there’s no biological distinction based on sex, then I think that’s an unfortunate situation, but I think it’s the unfortunate situation that comes from a zero-sum game, not from inherent injustice.”