ACLU Attorney Argues Against Defining Sex in Trans Supreme Court Case

During the Supreme Court’s oral arguments for the West Virginia v BPJ case regarding trans athletes in women’s sports, American 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 teen Becky Pepper-Jackson, who in 2021 sued the state to block its law banning biological males from competing in women’s sports. Pepper-Jackson and her mother were in the courtroom Tuesday to watch the attorney argue that the definition of sex should not be used in the court’s ruling.

Block’s statement came as he argued why West Virginia’s law banning biological males from competing in women’s sports violates Title IX, and then claimed that the purpose of Title X is not to have a precise definition of sex.

CLICK HERE FOR MORE SPORTS COVERAGE ON PakGazette.Com

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

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

Block responded: “I wrote ‘I do not give a definition of sex’ and I also said ‘I would not decide this assuming that Title IX grants the right to single-sex teams in the regulations. Single-sex teams are optional, not required.”

Block added that he was concerned that the court’s potential ruling in the case would claim that Title IX means something it doesn’t.

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. “Here you are arguing that there is discrimination on the basis of sex, and how can we decide that issue without knowing what sex means in Title IX?” -Roberts asked.

“It has to mean something!”

Block then responded by suggesting that sex discrimination could apply to a man acting feminine, and then admitted that biological differences influence the definition of sex.

“I think if someone said, ‘I’m going to discriminate against anyone who acts feminine’… I think that would be sex discrimination,” Block said. “But I wouldn’t say that’s not covered in Title IX… so I’m not saying that biological differences are not 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.”

REPUBLICAN GOVERNORS URGE JUDGES TO DEFEND WOMEN’S SPORTS AS SUPREME COURT HEARS KEY CASE

Block later admitted that sex should be defined for the sake of West Virginia v. BPJ as biological sex, but worries it will be misused in other cases.

“I think for this case, you can accept for the sake of this case that we’re talking about what they’ve called biological sex. I think that settles this case. I was just talking about addressing other potential cases,” Block said. “It could have downstream consequences that not even the United States wants the court to prejudge here.”

After the hearing, Pak Gazette Digital asked Block what his definition of “sex” is. He refused to give a definition.

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

Pak Gazette Digital attempted to ask Block why sex should not be defined in the case, but the attorney walked away and would not accept further questions. The question about the definition of sex was the only question Block answered in the post-hearing meeting before ending his speech to reporters.

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

“That’s completely bizarre. I don’t know how you can decide a case that interprets sex under Title IX and under the equal protection clause without defining sex,” Bursch told Pak Gazette 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 speaks volumes that he and the ACLU felt they had to tell the court not to define sex in order to survive this case.”

Early in the hearing, Block downplayed the impact of Pepper-Jackson’s presence on a women’s cross-country team on other girls, arguing that cross-country is a sport that has no cuts. Judge Neal Gorsuch responded by mentioning that many sports have cuts and that those sports are also affected by the ruling in this case.

CLICK HERE TO DOWNLOAD THE Pak Gazette APP

Block responded by arguing that many female athletes don’t make the cut on their team because other athletes outclass them, and then admitted that if a female athlete is displaced by a trans athlete, it’s “unfortunate.”

“No one likes to lose, no one likes not being part of the team. People often don’t make the team, cisgender girls don’t make the team when they compete 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 it’s an unfortunate situation, but I think it’s the unfortunate situation that arises from having a zero-sum game, not from inherent injustice.”