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Supreme Court Justice Samuel Alito on Tuesday questioned an attorney representing a biological male athlete in the Little v. Hecox on the definitions of woman and girl.
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Supreme Court Justice Samuel Alito testifies about the court’s budget during a House subcommittee hearing on March 7, 2019, in Washington, DC. (Chip Somodevilla/Getty Images)
“I’m sorry, I misunderstood your question. I think the underlying enactment, whatever it was, 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 are not discussing the definition here.
“What we are saying is that what it entails in practice is categorically excluding men by birth sex from women’s teams and there is a subset of those men by birth sex where it doesn’t make sense to do so in the state’s own interest.”
Alito then asked, “How can a court determine whether discrimination on the basis of sex exists 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 discussions on state laws banning transgender girls and women from playing on school sports teams, Tuesday, Jan. 13, 2026, in Washington, DC. (José Luis Magaña/AP)
“I think here we just know, we basically know that they have identified themselves under their own statute, Lindsay qualifies as a birth sex male and is being categorically excluded from women’s teams under the statute,” Hartnett responded. “So we’re taking the statute’s definitions as we find them and not challenging them. We’re just trying to figure out if they create an equal protection problem.”
Alito then posed a hypothetical question to Hartnett about a boy who had never taken any type of puberty blocker or other medication but believed he was a girl and whether a school can say the boy can’t participate on a girls’ sports team.
Hartnett suggested that the hypothetical was not necessarily what his side was arguing.
The question at hand is whether the laws in Idaho and West Virginia, which prohibit transgender athletes who identify as women from playing on teams that match their gender identity, discriminate on the basis of sex.
In the case of Little v. Hecox, a biological man seeking to compete on the women’s track and cross country teams at Boise State University, 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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Lawyers for the states defending the bans argue that separating sports by biological sex preserves fairness and safety for female athletes and is consistent with Title IX’s definition of sex.
