Legal Docket: Zero-sum reality

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MARY REICHARD, HOST: It’s The World and Everything in It for this 19th day of January, 2026. So glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Legal Docket.

AUDIO: “This is absolute nonsense”…crowd sounds…

On the steps of the U.S. Supreme Court a week ago tomorrow, hundreds gathered to argue over women’s sports.

For generations, the term required no explanation. Now, the Court is being asked to decide what it means.

But before we get to legal doctrine or definitions, there is another basic reality the justices will not be able to avoid: That sports are zero-sum.

Meaning: There are limited roster spots. Limited starting positions. Limited scholarships. Limited podiums.

In other words, one athlete included means another excluded. And unjust inclusion equals unjust exclusion.

REICHARD: That reality sits at the center of two cases the high court will decide before summer recess… cases that could determine whether states may safeguard athletic opportunities for female athletes only.

One is Little v. Hecox out of Idaho, and the second is West Virginia v. B.P.J. The legal questions in both are identical: a group of boys who say they identify as girls mounted legal challenges to both laws.

EICHER: And it’s important to be precise about what the Court is not deciding. These cases are not about whether states must protect women’s sports, they’re about whether they may. Whether legislatures can recognize sex-based differences in athletics—or whether doing so violates federal civil-rights law.

REICHARD: For athletes like Macy Petty, it’s no abstraction.

PETTY: I played volleyball in high school and college, and had to play against a man during my recruiting process to college, and that's kind of what brought me into this fight to begin with.

That was eight years ago, before so-called “trans” rights became an issue. Today, she’s a spokeswoman with Concerned Women for America, and she’s not forgotten what she went through:

PETTY: It was totally humiliating… All I knew… that this was blatantly cheating. And I was confident that USA Volleyball, the sanctioning organization for the event, was going to find out that this man was cheating and put an end to it, because I was completely naïve to believe that these sports institutions had anything having to do with my good in mind.

EICHER: Petty expected the adults in the room would step up. Especially the NCAA. She says she attended its annual conference year after year to try to speak with leadership.

PETTY: As a female athlete, I felt like I was nothing but a burden to them… despite them wearing Title IX shirts and shirts that say they want to empower women and them telling the press that. I had… extended public invitations to Charlie Baker, the president of the NCAA… because the court case oral arguments are the biggest things to happen to women's sports in a very long time. And this man who claims to champion women's sports was nowhere to be found…

REICHARD: She never heard back. I didn’t either. I reached out to NCAA for comment but received no response. That silence is important, because when governing bodies decline to draw lines, legislatures often do.

EICHER: Inside the Supreme Court, the work of legislatures in Idaho and West Virginia were at issue. Both states passed laws grounded in biology. Supporters say the goal is straightforward and easily verified: preserve fairness and safety in sex-segregated competition. Medical verification can be as simple as a cheek swab, the same as for drug testing already required of athletes.

REICHARD: And that brought the dispute squarely into federal court.

In West Virginia, a boy identified in court papers only as “B.P.J.” began taking on a female identity as early as third grade and has reportedly used puberty blockers and estrogen ever since.

Challenging Idaho was a young man identifying as a young woman: Lindsay Hecox sued after trying out for Boise State’s women’s cross-country team.

EICHER: Defending the Idaho law that kept Hecox off the team was state solicitor general Alan Hurst.

HURST: Idaho’s law classifies on the basis of sex, because sex is what matters in sports. ….Gender identity does not matter in sports. It treats all males equally and all females equally, regardless of identity. Idaho’s law is a substantial fit for 99 percent of males, and a perfect fit is not required. If it were, that would be the end of all sex-based classifications.

He pointed to male advantages in size, muscle mass, bone density, heart and lung capacity, along with safety concerns and cases where male athletes have injured females.

REICHARD: At that point in the argument, another problem surfaced. The case turns on sex-based classification—but the language used in the courtroom was anything but settled.

Throughout oral argument … lawyers and justices—conservative ones, too—repeatedly relied on categories that do not appear in the statute (terms like “cisgender”) and in several instances referred to a man as “she,” as though those premises were already resolved in law.

But they are not. And that matters, because Title IX prohibits discrimination on the basis of sex. Not gender identity, and not self-perception.

Like so many Supreme Court questions, precision of language matters here. The legal test depends on it.

EICHER: At argument, lawyer Kathleen Hartnett represented boys wanting to play girls’ sports. She said the laws are overly broad, adding that experts agree the naturally occurring hormone testosterone after puberty is what drives the advantage boys have. Her client, she argued, gave up much of that by using female hormones.

HARTNETT: Lindsay Hecox has mitigated that advantage because she has suppressed her testosterone for over a year and taken estrogen.

…going on to say that if her client had not taken female hormones, he wouldn’t be on the girls team, just like any other boy.

HARTNETT: That analysis would come out the other way for the untalented cisgender boy. He would have the same sex-based advantage, the circulating testosterone. He just would not be as good at sports.

But that framing depends on treating sex as something other than a biological classification. Rather as something mutable—something that can be medically adjusted. That uncertainty surfaced repeatedly during questioning from the bench.

Justice Sonia Sotomayor.

SOTOMAYOR: There’s no question here that a male who identifies as a female but it's a male, is being excluded from a female sport, correct?

HURST: That’s correct.

SOTOMAYOR: All right. By its nature, that’s a sex classification …

REICHARD: By contrast, Justice Ketanji Brown Jackson disputed the entire premise:

JACKSON: …you have an individual who says what is happening in this law is that it is treating someone who is transgender but who does not have, because of the medical interventions …who does not have the same threat to physical competition and safety and all of the reasons that the state puts forward….So you're not treating the class the same …

Justice Jackson returned again and again to the same point of confusion. In her Senate confirmation hearing almost three years ago, then Judge Jackson encountered Senator Marsha Blackburn. The senator anticipated a case with facts like these, where definitions would be central. She challenged Jackson to provide a definition of the word “woman.”

JACKSON: Can I provide a definition? No.

BLACKBURN: MM-hm. Yeah.

JACKSON: I can’t.

BLACKBURN: You can’t?

JACKSON: Not in this context. I’m not a biologist.

Over the course of the argument last week, Justice Jackson expressed uncertainty at least seven separate times when questioning the state’s reasoning.

JACKSON: I’m not sure I understand. I don’t understand. And I don’t understand why that is. I guess I don’t understand. I don’t understand why that’s the case. I don’t understand why … still struggling to understand why the state would …

The uncertainty is notable, given the legal standard at issue.

Because this case involves sex-based classification, the Court applies intermediate scrutiny. That requires the government to show an important objective for a law and that law must be substantially related to achieving it.

And it’s difficult for the analysis to proceed unless the Court first agrees on what sex means.

EICHER: Justice Samuel Alito pressed the point directly in questioning lawyer Hartnett, representing the boys.

ALITO: Do you agree that a school may have separate teams for a category of students classified as boys and a category of students classified as girls?

HARTNETT: Yes, Your Honor.

ALITO: If it does that, then is it not necessary for there to be, for equal protection purposes, an understanding of what it means to be a boy or a girl, or a man or a woman?

HARTNETT: Yes, Your Honor.

ALITO: And what is that definition? 

HARTNETT: We do not have a definition for the Court.

ALITO: Well how can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?

Justice Alito continued to press, and he caught Hartnett in an illogical tangle. That forced a concession that under her theory, a school can exclude a so-called “trans” athlete based on fairness concerns…which means discrimination on that basis is permissible.

ALITO: Can the school say no, you cannot participate on the girls team?

….later…

HARTNETT: Yes, they can.

ALITO: Is that person not a woman in your understanding? If the person says, I sincerely believe I am woman, I am, in fact, a woman?

HARTNETT: I think we—

ALITO: —is that person not a woman?

HARTNETT: I—I would respect their self-identity in addressing the person, but in terms of the statute, I think the question is, does that person have a sex-based biological advantage that's going to make it unfair for that person to be part of the women's team. And that —that's the rationale for the regulation, and so that's the reason—that's the way we would be testing that hypothetical.

ALITO: Well, the—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 …

In other words, under the challengers’ theory, schools may exclude a so-called “transgender” athlete for fairness reasons—even while saying sex itself cannot be defined.

Hartnett seemed to realize the tangled knot she was in in this exchange with Justice Brett Kavanaugh:

HARTNETT: …this is an important moment to just take a step back and say, “is this law actually responding to a problem in a rational manner, or is it actually overreacting on the presumption that transgender women are categorically going to be strong athletes?" when that's not the case.

KAVANAUGH: Well, just to put the big picture, and you know this, obviously, one of the great successes in America over the last 50 years has been the growth of women and girls’ sports and it’s inspiring.

REICHARD: It’s worth noting how the Court arrived here.

Five years ago, Justice Neil Gorsuch wrote the majority opinion in Bostock v. Clayton County. That was an employment-law case that held discrimination based on sexual orientation or transgender status could violate federal civil-rights law.

That decision explicitly said it did not address sports, bathrooms, or Title IX.

But the reasoning didn’t remain confined to employment. Schools and athletic associations adopted broad “inclusion” policies anyway—often preemptively—out of fear of lawsuits or financial pressure.

Those policies are now colliding with sex-segregated sports—and landing back before the Court.

EICHER: Justice Kavanaugh has two daughters and coaches their teams, so he knows:

KAVANAUGH: Usually with teams, there’s cuts, and those mean a lot to people. There’s starting lineups; those mean a lot to people. Who gets a college recruit? That means a lot to people….I think we have to recognize on both sides the zero sum. It’s not like, oh, just add another person to the team, that’s not how sports works. It’s someone else is going to get disadvantaged.

REICHARD That’s what women like Macy Petty keep saying: women’s sports create opportunities like scholarships, records, championships, trophies … and safety and dignity.

Yet women deprived of those things had no representation in court.

EICHER: A final note now: at a Women in Sports Gala last week put on by Alliance Defending Freedom, Abby Cross told of her daughter’s track team, where a boy joined and began dominating.

CROSS: He was suddenly throwing 25 feet farther than the, you know, than he had been, which was not an increase that the other girls were making…

Cross said even the coach was afraid to speak up.

CROSS: The one guiding factor that has kept us going through this, given us the courage to speak up, is our relationship with Jesus. I've realized that my relationship with God has given me something stronger than fear to answer to…

REICHARD: From fear, to faith, to the Supreme Court and the meaning of words, as Justice Alito put it:

ALITO: Title IX prohibits discrimination on the basis of sex. It's a statutory term. It must mean something. You're arguing that, here, there's discrimination on the basis of sex. And how can we decide that question without knowing what sex means in Title IX?

Good question.

And that’s this week’s Legal Docket.

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