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Supreme Court Justice Samuel Alito grilled a lawyer representing a biologically male athlete in the case of Little v. Hecox on Tuesday about the definitions of a woman and a girl.
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Supreme Court Justice Samuel Alito testifies on 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 have an understanding of how the state or the government understood that term to figure out if someone was excluded,” Hartnett said. “We don’t have a definition before the court. We don’t dispute the definition here.
“What we’re saying is the way it implies in practice is to exclude men of birth sex categorically from women’s teams, and there is a subset of those men of birth sex where it does not make sense to do so according to the state’s own interests.”
Alito then asked, “How can a court determine whether there is discrimination on the basis of sex without knowing what sex means for equal protection purposes?”
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Rep. Mike Johnson, R-La., speaks to the crowd gathered outside the Supreme Court during discussions on state laws barring transgender girls and women from playing on school athletic teams, Tuesday, Jan. 13, 2026, in Washington, DC (Jose Luis Magana/AP)
“I think here we just know that basically we know that they’ve identified under their own statute, Lindsay qualifies as a birth gender male, and she’s categorically excluded from the women’s teams as the statute,” Hartnett responded. “So we’re taking the statute’s definitions as we find them, and we’re not challenging them. We’re just trying to figure out if they create an equal protection problem?”
Alito then asked Hartnett a hypothetical question about a boy who has never taken any puberty blockers or other medications but thought they were 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 her side was arguing for.
At issue is whether laws in Idaho and West Virginia that prohibit transgender athletes who identify as women from playing on teams that match their gender identity discriminate based on gender.
In the case of Little v. Hecox, a biological male trying to compete on the women’s track and cross country team at Boise State University claimed that Idaho’s 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 segregating sports based on biological sex preserves fairness and safety for female athletes and is consistent with Title IX’s definition of sex.
