Trans athlete's attorney suggests sex should not be defined during SCOTUS Title IX case

During Supreme Court oral arguments for the West Virginia v B.P.J. case on trans athletes in women's sports, American Civil Liberties Attorney Joshua Block suggested that "sex" should not be defined legally. Block then fled questioning when asked to elaborate why after the hearing. 

Block represents West Virginia trans teen Becky Pepper-Jackson, who in 2021 sued the state to block its law that prohibits biological males from competing in girls' sports. Pepper-Jackson and her mother were in the courtroom on Tuesday to watch the attorney argue the definition of sex should not be used in the court's ruling. 

Block's statement came while arguing why West Virginia's law that prohibits biological males from competing in girls' sports violates Title IX, and then claimed the purpose of Title X is not to have an accurate definition of sex. 

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"However the court resolves this case, I really urge the court not to do it on the definition of sex argument," Block said, later adding. "I don't think the purpose of Title IX is to have an accurate definition of sex. I think the purpose is to make sure that sex isn't being used to discriminate by denying opportunities… I wouldn't look to whether or not to classify B.P.J. as male or female, I think the question is, ‘is she being denied an opportunity because of that classification?'"

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

Block answered, "I wrote ‘don’t give definition of sex,' and I also said ‘I wouldn’t decide this by assuming that Title IX provides a right to single-sex teams in the regulations. Single-sex teams are optional, they're not mandatory. " 

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

Chief Justice John Roberts grilled Block for making the suggestion.

"Title IX prohibits discrimination on the basis of sex, it's a statutory term, it must mean something," Roberts said. "You're arguing here there is discrimination on the basis of sex, and how can we decide that question without knowing what sex means in Title IX?" Roberts asked. 

"It has to mean something!"

Block then responded by suggesting sex discrimination could be applied to a man who acts feminine, then conceded that biological differences do play into defining sex. 

"I think if someone said, ‘I’m going to discriminate anyone who acts in a feminine manner' … 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 aren't part of sex, but I am saying that sex has broader connotations …

"There's a group of people who are assigned male at birth, for who, being placed on the boy's team is harmful."

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Block then conceded that sex should be defined for the sake of the West Virginia v B.P.J. as biological sex, but that he's worried it would 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 termed to be biological sex. I think that resolves this case. I was just talking about in addressing other potential cases," Block said. "it might have downstream consequences that even the United States doesn't want the court to pre-judge here." 

After the hearing, Fox News Digital asked Block what his definition of "sex" is. He declined to give a definition.

"I don't think that's what, that's what's at issue in this case. What's at issue in this case is fair treatment for all people, including cis people and trans people, and that's what we're hear to talk about to today," Block answered. 

Fox News Digital attempted to ask Block why sex should not be defined in the case, but the attorney walked away and did not take any further questions. The question on defining sex was the only question Block answered in the post-hearing scrum before ending his address to reporters. 

John Bursch, of Alliance of Defending Freedom, the law firm representing female athletes and the state of West Virginia, said Block's insistence of not defining sex was "completely bizarre."

"That's completely bizarre. I don't know how you can decide a case interpreting sex under Title IX and under the equal protection clause by not defining sex," Bursch told Fox News 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 says a lot that he felt and the ACLU felt they had to tell the court not to define sex in order for them to survive this case." 

Earlier in the hearing, Block minimized the impact of Pepper-Jackson's presence on a girls' cross-country team on other girls, arguing that cross-country is a sport that doesn't have cuts. Justice Neal Gorsuch responded bringing up that many sports do have cuts, and those sports are affected by the ruling in this case as well.

Block responded by arguing that plenty of female athletes don't make the cut on their team due to being outperformed by other female athletes, and then admitted that if a female athlete is displaced by a trans athlete it is "unfortunate."

"No one likes to lose, no one likes to not make the team. People often don't make the team, cisgender girls don't make the team when competing against other cisgender girls all the time, and I think the question I think is whether it's an unfair advantage because a transgender girl participated," Block said. "And if there is no sex-based biological distinction there, then I think it's an unfortunate situation, but I think it's the unfortunate situation that comes with having a zero-sum game, not with inherent unfairness." 

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