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Supreme Court Justice Samuel Alito on Tuesday questioned a lawyer representing a biological male athlete in the case Little v. Hecox on the definitions of a woman and a girl.
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Supreme Court Justice Samuel Alito testifies about the Court’s budget during a House subcommittee hearing March 7, 2019 in Washington, DC. (Chip Somodevilla/Getty Images)
“Sorry, I misunderstood your question. I think the underlying law, whatever it is, the policy, the law, we would have to understand how the state or the government understood that term to determine if someone was excluded,” Hartnett said. “We don’t have a definition for the court. We’re not disputing the definition here.
“What we’re saying is that in practice that means categorically excluding biological males from women’s teams and there is a subset of those biological males for whom it doesn’t make sense to do that based on the state’s own interests.”
Alito then asked, “How can a court determine whether there is sex discrimination without knowing what sex means for equal protection purposes?” »
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House Speaker Mike Johnson, R-La., addresses the crowd gathered outside the Supreme Court during debates on state laws banning transgender girls and women from playing on school sports teams, Tuesday, Jan. 13, 2026, in Washington, DC. (José Luis Magana/AP)
“I think here we just know, we basically know that they have identified in accordance with their own status, that Lindsay is considered male by birth sex and that she is categorically excluded from women’s teams by statute,” Hartnett responded. “So we take the definitions in the law as we find them and we don’t challenge them. We’re just trying to understand, do they create an equal protection problem?”
Alito then asked Hartnett a hypothetical question about a boy who never took puberty blockers or other medications but believed he was a girl and whether a school can say the boy can’t compete on a girls’ sports team.
Hartnett suggested that the hypothesis was not necessarily what his camp supported.
At issue is whether laws in Idaho and West Virginia, which prohibit transgender athletes who identify as women from playing on teams matching their gender identity, discriminate on the basis of sex.
In the case of Little v. Hecox, a biological male who sought to compete on the Boise State University women’s track and field and cross country teams, argued that Idaho’s law, the Fairness in Women’s Sports Act, violated the Equal Protection Clause by excluding transgender women.
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State lawyers defending the bans argue that separating sports based on biological sex preserves fairness and safety for female athletes and is consistent with Title IX’s definition of sex.
