Although a majority appeared unlikely to strike down West Virginia and Idaho's bans, there also seemed to be interest in avoiding a final decision on constitutional questions for now.
Thanks Chris! It's been a hard day and I just didn't have it in me to listen to the arugments. I hate that realistic hope is on a narrow ruling, but it's better than the alternative.
I listened to Skremetti, back when I thought a loss wasn't a foregone conclusion under the reasoning that Gorsuch and Roberts supported Bostock and Barrett's stance was unknown. After that my mindset basically changed to one of expecting that they will allow any anti-trans law to stand, or at least any of the sort that currently exists as state laws.
The classification question is the core issue. If trans people are a protected class, how do Courts classify them?
The argument that biological sex is the science (Alito) -- put aside for a moment --, Barrett and Gorsuch really pushed on how scientific methods could be used to classify a person as trans.
This is the core issue because past protected classes -- race, religion, age, disability, and even sex -- were established before the rise of postmodern critique. Past cases about LGBT people (Lawrence, Obergefell) didn't have to answer the question of classifying such a person based on hormone levels, or presenting as normative, or whatever; just whether the person fell into a protected class based on evidence of testable membership in the group.
The justices deferred to experts, but some experts now argue that both gender and sex are socially constructed concepts. Oh boy ...
"Barrett and Gorsuch really pushed on how scientific methods could be used to classify a person as trans."
Did you take the tone of their comments to be postive for us? From Chris's writeup it sounded like both were unexpectidlty (to me) positive at some other moments.
Both of those justices sound like swing votes in orals to me, but then months later side with the conservative block anyways. Maybe a minor, narrow sex discrimination ruling will come of it. Technically, trans boys are not being discriminated so it could be a women's protected subclass. But I doubt it.
Hi! You mentioned that you listed to the SCOTUS oral arguments on the sports ban.
Do you recall Barrett saying anything like this?
“Your whole position in this case depends on there being inherent differences,” the Justice told the anti-gender rights camp. “I’d be a little bit concerned about what the ramifications of that might be.”
This has been quoted in a couple article and when I looked at the oral arguments transcript on the SCOTUS website I couldn't find it anywhere.
I asked AI what's going on and AI think's that reporters may have read an AI summary of the oral arugments and those comments by Barrett may have been an AI halucination.
It seems like a significant comment, if it happened, so I wast just wondering if you recall hearing something like thaat.
I just looked at the transcript and found this on p.15
JUSTICE BARRETT: Well, your whole position in this case depends on there being inherent differences, right?
MR. WILLIAMS: It does. And I think that that's exactly why discrimination in the Title IX context, where it acknowledges merely inherent biological differences, that that's
I found it now, thanks so much! For some reason I thought the arugments for Idaho and West Virginia were in one transcript and I was looking in the wrong one.
Alito is right, and the question he forced matters. You cannot litigate sex-based discrimination while refusing to define sex. Title IX is built on biological reality, not vibes, self-declaration, or linguistic gymnastics. If petitioners can’t explain what “woman” means in law, then the entire discrimination claim collapses into feelings masquerading as doctrine. Courts don’t adjudicate sincerity; they adjudicate categories. Sports, in particular, exist because sex differences are real, measurable, and consequential. Asking whether a male body can simply opt into female classification isn’t cruelty—it’s jurisprudence. You can respect individuals and still insist the law mean something. Undefined terms don’t create rights; they dissolve them.
You don't need to inspect someone's DNA to know when they are being targeted for their gender, you just need to look at the behavior in question.
Let's say a trans woman (assigned male at birth) wears a dress to work. Bostock established that firing that worker for doing so would be considered a title 7 violation. The current court did this without establishing a definition of sex, because it is apparent that the rule in question discriminates on sex based characteristics.
This Supine Court seems intent on dragging up back to the Fifties … when abortion was illegal, AND discrimination condoned against people of color, Italians and Roman Catholics. Ironically incognito z
All of this ridiculous nonsense over a group of people who constitute .06 percent of the population. The number of transgender people is small, and like the bullies they are, the religious nationalists have chosen to target a minute percentage of the population. The population of nonbinary and transgender people has not increased, only their visibility has.
It's nice to be able to feel if there is such a word quasi-optimistic. There are undoubtedly hard - make that even harder - times ahead but I still believe in the line about the arc of the moral universe.
So I take hope in the shift in tone represented by Kavanaugh's remark that "one of the themes of your argument has been the more people learn, the more they’ll agree with you.“ I do it both because that is true and because perhaps that, again, shift in tone in the result of some members of the Court starting to think "um this whole business is more complicated than I originally thought."
In the period 1998-2008, 26 states added state Constitutional provisions banning same-sex marriage at a tine when opposition to those rights ran at about 60%. But support was slowly rising and the reactionaries, aware of that fact, pushed these amendments to lock in their bigotry.
Still, support continued to rise, in 2015 SCOTUS struck all of them down, and polls over the past two years show 67-69% of the public supporting same-sex marriage.
It's unclear who originated the saying "History doesn’t repeat itself, but it often rhymes” (no, it wasn't Mark Twain). No matter; with some recent polls saying that a clear majority of Republican voters think their party is way too concerned with trans rights issues, I don't feel it remiss to listen for the perhaps faint but still perceptible sound of rhyming chimes.
Thank you Chris, for your excellent analysis. I listened to most of the argument, missing a little at each end, so I was surprised to see the headlines "Court likely to uphold trans sports ban." I thought it was remarkably more nuanced than I expected, and I felt that Gorsuch/Kavanaugh/Barrett were actually grappling with the best way to do this, considering the states are pretty evenly split. And in particular, I liked that the justices were rejecting Hurst's framing of transgender women/girls as men playing women's sports. Hurst was wedded to a frame that no one else was using, which was delightful to me, particularly when Gorsuch spoke (as the author of Bostock, a decision which was remarkably respectful language-wise of trans women.)
Kavanaugh said "I hate, hate, hate when a kid can't play sports". While some may focus on how 0-sum teams with cuts are, Kavanaugh specifically told both sides that they need to think on that.
I believe Kavanaugh is recognizing that trans girls without biological sex based advantage are, in fact, denied an opportunity to compete.
I think it was surprising (to me at least) and very interesting that Barrett when from opining in her side opimion in Skremetti that it's unlikely trans people are a quasi-suspect class or covered under equal protection, to in the sports case today expressing hesitance about a ruling upholding the bans in a way that would result in broader effects.
Yeah. A narrow ruling sure makes me feel better. I’m pretty sure my trans friends and I will celebrate with drinks that yet again we are diminished, insulted, and attacked because clearly we are public property to be discussed openly as inferiors.
Thanks Chris! It's been a hard day and I just didn't have it in me to listen to the arugments. I hate that realistic hope is on a narrow ruling, but it's better than the alternative.
I did listen. You were wiser.
I listened to Skremetti, back when I thought a loss wasn't a foregone conclusion under the reasoning that Gorsuch and Roberts supported Bostock and Barrett's stance was unknown. After that my mindset basically changed to one of expecting that they will allow any anti-trans law to stand, or at least any of the sort that currently exists as state laws.
I listened and am glad of it.
The classification question is the core issue. If trans people are a protected class, how do Courts classify them?
The argument that biological sex is the science (Alito) -- put aside for a moment --, Barrett and Gorsuch really pushed on how scientific methods could be used to classify a person as trans.
This is the core issue because past protected classes -- race, religion, age, disability, and even sex -- were established before the rise of postmodern critique. Past cases about LGBT people (Lawrence, Obergefell) didn't have to answer the question of classifying such a person based on hormone levels, or presenting as normative, or whatever; just whether the person fell into a protected class based on evidence of testable membership in the group.
The justices deferred to experts, but some experts now argue that both gender and sex are socially constructed concepts. Oh boy ...
Thanks for highlighting this!
"Barrett and Gorsuch really pushed on how scientific methods could be used to classify a person as trans."
Did you take the tone of their comments to be postive for us? From Chris's writeup it sounded like both were unexpectidlty (to me) positive at some other moments.
Both of those justices sound like swing votes in orals to me, but then months later side with the conservative block anyways. Maybe a minor, narrow sex discrimination ruling will come of it. Technically, trans boys are not being discriminated so it could be a women's protected subclass. But I doubt it.
And no problem.
Hi! You mentioned that you listed to the SCOTUS oral arguments on the sports ban.
Do you recall Barrett saying anything like this?
“Your whole position in this case depends on there being inherent differences,” the Justice told the anti-gender rights camp. “I’d be a little bit concerned about what the ramifications of that might be.”
This has been quoted in a couple article and when I looked at the oral arguments transcript on the SCOTUS website I couldn't find it anywhere.
I asked AI what's going on and AI think's that reporters may have read an AI summary of the oral arugments and those comments by Barrett may have been an AI halucination.
It seems like a significant comment, if it happened, so I wast just wondering if you recall hearing something like thaat.
I just looked at the transcript and found this on p.15
JUSTICE BARRETT: Well, your whole position in this case depends on there being inherent differences, right?
MR. WILLIAMS: It does. And I think that that's exactly why discrimination in the Title IX context, where it acknowledges merely inherent biological differences, that that's
I found it now, thanks so much! For some reason I thought the arugments for Idaho and West Virginia were in one transcript and I was looking in the wrong one.
Damn Roberts and his faux-Christian fascist justices.
Alito is right, and the question he forced matters. You cannot litigate sex-based discrimination while refusing to define sex. Title IX is built on biological reality, not vibes, self-declaration, or linguistic gymnastics. If petitioners can’t explain what “woman” means in law, then the entire discrimination claim collapses into feelings masquerading as doctrine. Courts don’t adjudicate sincerity; they adjudicate categories. Sports, in particular, exist because sex differences are real, measurable, and consequential. Asking whether a male body can simply opt into female classification isn’t cruelty—it’s jurisprudence. You can respect individuals and still insist the law mean something. Undefined terms don’t create rights; they dissolve them.
You don't need to inspect someone's DNA to know when they are being targeted for their gender, you just need to look at the behavior in question.
Let's say a trans woman (assigned male at birth) wears a dress to work. Bostock established that firing that worker for doing so would be considered a title 7 violation. The current court did this without establishing a definition of sex, because it is apparent that the rule in question discriminates on sex based characteristics.
Hartnett was exemplary. It eases the mind to see Alito get so efficiently managed. (Ooh sahh.)
Alito’s boy-in-all-but-name is right up there with the Black mall Santa.
It would be hard to believe it if Mr.Ginni & Bullshito and wife ever change a single mind.
Both are so far beyond decisions it smells funny from many miles away. Just sayin' Mr Roberts. Worst court ever.
Your court! How's that reputation goin?
This Supine Court seems intent on dragging up back to the Fifties … when abortion was illegal, AND discrimination condoned against people of color, Italians and Roman Catholics. Ironically incognito z
All of this ridiculous nonsense over a group of people who constitute .06 percent of the population. The number of transgender people is small, and like the bullies they are, the religious nationalists have chosen to target a minute percentage of the population. The population of nonbinary and transgender people has not increased, only their visibility has.
This is the most optimistic take on the arguments that I have heard.
Thanks, we needed that.
Alito and Barrett I'm not sure on*
Justice Scalia? He passed away years ago. Do you mean Alito??
Thanks, Chris! This gives us some hope to hold onto at least.
It's nice to be able to feel if there is such a word quasi-optimistic. There are undoubtedly hard - make that even harder - times ahead but I still believe in the line about the arc of the moral universe.
So I take hope in the shift in tone represented by Kavanaugh's remark that "one of the themes of your argument has been the more people learn, the more they’ll agree with you.“ I do it both because that is true and because perhaps that, again, shift in tone in the result of some members of the Court starting to think "um this whole business is more complicated than I originally thought."
In the period 1998-2008, 26 states added state Constitutional provisions banning same-sex marriage at a tine when opposition to those rights ran at about 60%. But support was slowly rising and the reactionaries, aware of that fact, pushed these amendments to lock in their bigotry.
Still, support continued to rise, in 2015 SCOTUS struck all of them down, and polls over the past two years show 67-69% of the public supporting same-sex marriage.
It's unclear who originated the saying "History doesn’t repeat itself, but it often rhymes” (no, it wasn't Mark Twain). No matter; with some recent polls saying that a clear majority of Republican voters think their party is way too concerned with trans rights issues, I don't feel it remiss to listen for the perhaps faint but still perceptible sound of rhyming chimes.
Thank you Chris, for your excellent analysis. I listened to most of the argument, missing a little at each end, so I was surprised to see the headlines "Court likely to uphold trans sports ban." I thought it was remarkably more nuanced than I expected, and I felt that Gorsuch/Kavanaugh/Barrett were actually grappling with the best way to do this, considering the states are pretty evenly split. And in particular, I liked that the justices were rejecting Hurst's framing of transgender women/girls as men playing women's sports. Hurst was wedded to a frame that no one else was using, which was delightful to me, particularly when Gorsuch spoke (as the author of Bostock, a decision which was remarkably respectful language-wise of trans women.)
Kavanaugh said "I hate, hate, hate when a kid can't play sports". While some may focus on how 0-sum teams with cuts are, Kavanaugh specifically told both sides that they need to think on that.
I believe Kavanaugh is recognizing that trans girls without biological sex based advantage are, in fact, denied an opportunity to compete.
I think it was surprising (to me at least) and very interesting that Barrett when from opining in her side opimion in Skremetti that it's unlikely trans people are a quasi-suspect class or covered under equal protection, to in the sports case today expressing hesitance about a ruling upholding the bans in a way that would result in broader effects.
Yeah. A narrow ruling sure makes me feel better. I’m pretty sure my trans friends and I will celebrate with drinks that yet again we are diminished, insulted, and attacked because clearly we are public property to be discussed openly as inferiors.
Thanks you Chris. Even
a slim margin is good.
Excellent overview of the court discussion. Hoping you're right on the decision being narrow.
I gather that Justice Barrett has been getting flack from the bigots on the right because she correctly used "trans girls" in the discussion.