The Big Winners in BPJ Could Be … Sexist Bosses?

The ACLU tries to abolish sex discrimination lawsuits

Well, I -- I’m sorry. You don’t think we should have an operating definition of “sex” in Title IX?

–John Roberts, Chief Justice of the Supreme Court of the United States (2026)

Outside the US Supreme Court on Jan. 13, 2026

​In 2021, Kara Dansky published The Abolition of Sex, in which she argued the ACLU was using strategic lawsuits to replace “sex” in law with “gender identity.” This would eviscerate women’s rights to sports and spaces, she explained, since a person’s gender identity is whatever they say it is. In 2024, I compared the ACLU’s sex/gender identity switcheroo to a magic trick.

On Jan. 13, 2026, the ACLU’s Joshua Block told the US Supreme Court that he was not trying to replace sex with gender identity. (“I’m certainly not saying that sex means gender identity.”) Rather, he wants to replace a binary, biological view of sex with “sex-based characteristics,” including but not limited to “limp wrists.” This tracks how the ACLU construes sex in a 2025 lawsuit about passports, Orr v. Trump. There, it lists gender identity as one of at least six “attributes” of sex.

In this post I’ll explain why the ACLU’s new theory of sex would gut sex-based rights against discrimination. In short, the ACLU’s trans-power toolkit gives defendants a bundle of new tricks with which to thwart “cisgender” plaintiffs.

First I’ll provide background on Hecox and BPJ, the sports cases that brought the ACLU to SCOTUS last week, and analyze the trans-rights lawyers’ stunning remarks about what sex is. Then I’ll explore the ramifications for civil rights law if the ACLU gets its way.

The Road to DC

In 2020, Idaho became the first state in the US to protect girls’ and women’s scholastic sports by passing a law that kept males out of them. Many states followed. The ACLU and other trans rights orgs sued.¹ In Idaho the ACLU represented Lindsay Hecox, a male college student who used cross-sex hormones but hadn’t been puberty-blocked. In West Virginia it represented Becky Pepper Jackson (known in court as BPJ), a puberty-blocked boy who is now 15.

Both Hecox and BPJ raise the question of whether protecting girls’ sports violates the equal protection clause of the 14th Amendment of the Constitution, either because they discriminate against “transgender” people (Team Trans backed off this point at oral argument) or because they impermissibly discriminate by sex. BPJ also contends the state laws violate Title IX, which guarantees equal opportunities at school. Both male athletes prevailed at the appellate level in the trans-credulous Fourth and Nine Circuits, respectively.

The Supreme Court heard back-to-back arguments last week. The ACLU’s Joshua Block handled BPJ while his co-counsel Kathleen Hartnett, an elite biglaw partner, argued for Hecox. Longtime readers might recall Hartnett’s role in an Alabama judge-shopping scandal. Having apologized profusely for her slippery behavior down South, she’s now back in the saddle arguing that trans-identified men hold a “disadvantage” compared to women “if they happen to have larger bones and less testosterone or muscle to drive those bones.”

The flipside is why I’m such an unstoppable force on the rugby field. I have average T levels for a woman but spindly bones.

Hartnett and Block only advocated for inclusion of males who hold no athletic advantage over females thanks to disabling medical interventions. They want SCOTUS to dismiss Hecox as moot (he promises he won’t play women’s sports anymore) and kick BPJ back down to the district court for fact-finding on the science of puberty blockers. That’s an effort to delay the inevitable, since studies show boys have athletic advantages over girls well before puberty.

Note: sex discrimination laws in the US protect members of both sexes. Men can sue for the same sort of hostility, harassment, unequal treatment or denial of opportunities as women can. But when it comes to school sports, it’s almost always girls/women who need the law’s help.

Below I’ll focus on what oral argument told us about sex. For my reactions more broadly, see my tweets from the past week.

“Don’t Give Definition of Sex”

Team Trans came in with a plan not to define “sex.” Up first, Hartnett:

We’re not asking for a particular definition [of sex] or even really an exception [for trans-identified males from the definition of sex].

Justice Samuel Alito, who homed in on the ACLU’s abuse of the word gender in his Skrmetti concurrence, comes prepared. He performs his best impression of a based lesbian:

ALITO: Do you agree that a school may have separate teams for a category of students classified as boys and a category of students classified as girls?

HARTNETT: Yes, Your Honor.

ALITO: If it does that, then is it not necessary for there to be, for equal protection purposes, if that is challenged under the Equal Protection Clause, an understanding of what it means to be a boy or a girl or a man or a woman?

HARTNETT: Yes, Your Honor.

ALITO: And what is that definition? For equal protection purposes, what does -- what does it mean to be a boy or a girl or a man or a woman?

HARTNETT: Sorry, I misunderstood your question. [...] We do not have a definition for the Court.

Alito tries again:

ALITO: Well, how can you – how can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?

HARTNETT: I think here we just know -- we -- we basically know that the – that they’ve identified pursuant to their own statute, Lindsay qualifies as a birth-sex male. And she’s being excluded categorically from the women’s teams as the statute -- so we’re taking the statute’s definitions as we find them and we don’t dispute them. We’re just trying to figure out, do they create an equal protection problem? [End of answer.]

OK. Keep figuring, Kathleen Hartnett. Sorry you weren’t able to steer your case into a more sympathetic Supreme Court.

Later, Joshua Block pleads:

However the Court resolves this case, I -- I really urge the Court not to do it based on a definition-of-sex argument. We are not disputing in this case that West Virginia can have its definition of sex. Our argument is it’s using this definition to inflict discrimination and deny equal athlete opportunity. But we are not saying their definition of sex is wrong.

Block doesn’t challenge the sex binary except to say it impermissibly discriminates against trans people. But isn’t that the whole ballgame? “It’s totally fine if you want to say girls are female, I’m just going to sue you every time you do.”

Block doesn’t want Title IX to “preempt[] a state’s ability to say, you know, actually, we are most concerned about discrimination that happens through gender roles [rather than sex].”

Yes, let West Virginia protect girls’ opportunities but allow New Jersey to split its soccer leagues into “kids who hunt deer for their family” and “kids who gather berries.” It’s called federalism.

Block thinks words in a statute should only be defined if the purpose of the statute is to define the word:

“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, just -- just as I don’t think we need to -- to define race in order to enforce Title VI.”

We don’t need to define race because no one has ever brought a lawsuit based on the idea that race means “what type of music people listen to.” Words in statutes often go undefined until people disagree about what they mean. Then a court defines the word. Block is telling the justices not to do their job. (This paragraph is so basic I fear I sound condescending.)

Justice Elena Kagan asks Block how she can write an opinion that lets states make different decisions about how to divide sports teams. Block answers, in part: “Don’t give definition of sex.” Again, there’s an asterisk – he will keep suing states that use definitions he doesn’t like. So SCOTUS would be fueling conflict if it took his instruction. Generally SCOTUS answers questions with finality to resolve conflict, so litigation can cease. (Apologies again for the middle school civics lesson.)

Alito finally breaks through the trans stonewalling:

ALITO: Title IX prohibits discrimination on the basis of sex. It’s a statutory term. It must mean something. You’re arguing that, here, there’s discrimination on the basis of sex.

And how can we decide that question without knowing what sex means in Title IX? I mean, it could mean biological sex. It could mean gender identity. It could mean whatever a state wants to define it to mean but it has to mean something.

How can we decide that without knowing what the statutory term means?

BLOCK: Well, I -- I think there are a whole range of sex-based characteristics that can give rise to discrimination. I think if someone said I’m going to discriminate against anyone who acts in a feminine manner, like anyone with limp wrists, I don’t care who they are, but I’m going to discriminate against them, like I think that would be sex discrimination. It would be sort of gender presentation. I would -- but I wouldn’t say that’s not covered by Title IX.

[...] Our argument is that there’s a group of people who are assigned male at birth who -- for whom being placed on the boy’s team is harmful, right? [...]

A few minutes later, Chief Justice John Roberts regains his composure after silently cracking up over the “limp wrists” line.

ROBERTS: Well, I -- I’m sorry. You don’t think we should have an operating definition of sex in Title IX? Now, I understand the idea that – well, the question then becomes not whether or not there’s discrimination on the basis of sex but whether there’s discrimination on the basis of whatever characteristic you think should be included in a definition of sex.

Now when it’s used as a statutory term, I’m not sure you have that kind of flexibility. The question then would be instead what does Congress thinks -- think the words -- word means?

BLOCK: Well, Your Honor, I guess I’d say I think Congress prohibited discrimination based on sex. I don’t think --

ROBERTS: Then -- I’m sorry, go ahead.

BLOCK: Yeah. And, so -- so I don’t think that just as I don’t think Congress adopted a definition of -- of race, you know, in Title XI in order to prohibit discrimination on the basis of race. I think -- I think we’re not trying to police the accuracy of the terminology that’s being used.

All I’m saying is that what’s being prohibited is using this classification to discriminate, not --

ROBERTS: So, you – well, but without really knowing what the distinction is?

BLOCK: Well, I -- I -- you know, I think -- I don’t think the examples I’ve given about sex-based characteristics, like, fall outside the common understanding of things that are related to sex.

ROBERTS: Well, related to sex. I -- I guess what you’re saying is then we do have to accept for your position that we’re not dealing, when -- when Congress says sex, we’re not dealing with biological sex but we’re deal [sic] with other characteristics that people might associate with sex?

BLOCK: No, no, no. I think for this case you can accept for the sake of this case that -- that we’re talking about what they’ve termed to be biological sex. [...]

When Block says “no, no, no” he doesn’t mean Roberts is wrong. Roberts has, in fact, picked him apart like a clock (politely). Block is saying he would like to maintain the pretense, for the record, for now, that he doesn’t care what sex is. Nevermind that he is petitioning the highest court of the land because he cares very much about West Virginia acting on its definition of sex …

If you were hoping the justices would see right through this sweaty sophistry, I regret to quote you Justice Neil Gorsuch:

GORSUCH: So we don’t have to say anything about the matter [of what sex is]. You’re willing for us to proceed on that assumption [that the parties don’t contest the meaning of sex even though they do]?

BLOCK: Exactly. Just like in Bostock, I think you can proceed for argument’s sake without taking a definitive position here[.]

In Bostock (2020), which Gorsuch authored, the Court relied on a definition of sex that the parties would seem to agree on, without declaring it was correct. The ruling’s ambiguity on that and other points led to a nightmare of federal over-reach and multistate legal brawls in response that only ended because Democrats lost the White House. Trans rights lawyers are still thumping Bostock in private lawsuits today, arguing it holds all sorts of meanings that the Court almost certainly did not intend. This moment at BPJ oral argument crystallizes Gorsuch’s culpability for that chaos and hints he might want to double down. (Kara Dansky writes about a different Gorsuch exchange that also bodes poorly.) Hopefully this time, he won’t be able to attract four of his colleagues to his view.

Team Trans came to 1 First Street determined to say nothing about sex, it seems. But then Alito kept squeezing and shaking them so Block admitted he thinks sex is about limp wrists. He didn’t misspeak – this general idea is present in Orr v. Trump. The ACLU really does want “sex” to mean “sex-based characteristics” like gender roles and gaydar signals.

What will happen if the ACLU gets its way?

The End of Women’s Sports

Title IX:

“​​No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance [...]”

Since sports are competitive and males have an advantage, girls and women can only participate in the same ways boys and men can if they’re separated. This epiphany didn’t strike all educational leaders overnight in 1972 and instantly result in fairness. Female students had to lobby and sue over and over for years to establish this principle and force schools to comply. Schools dragged their feet: they claimed boys were more interested in sports, or football was naturally a more expensive program that should lead to schools spending more on boys.

But imagine the ACLU’s view of sex prevails in BPJ/Hecox. SCOTUS declares the word “sex” in civil rights laws doesn’t refer to the male/female biological binary. Then why are there two teams? Where does the number two even come from?

At BPJ oral argument, Block argued the statute and its implementing regulations, from the Department of Education, don’t require two teams:

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. And the -- in addition to the -- we’ve been talking about the regulations, but on the ground, the way this plays out in practice is you have a 1979 policy statement, a sub-regulatory document, that has a complicated test for determining when a sex-separated team is or is not required.

Schools offer female-only teams not because the regs literally dictate them but because they’re afraid of getting sued based on an interpretation of Title IX. If sex doesn’t refer to a male/female binary, those lawsuits will be harder to bring and easier to defend.

First, how will girls state their claim? They can’t simply say, “the school district denies girls the right to participate in sports” because the meaning of the term “girl” isn’t clear. Does it mean female gender identity? Is it too “imprecise” to be taken at face value? (I’m drawing on other ACLU lawsuits.)

So the girls would have to say:

The school district denies students with weak wrists the opportunity to play sports because there is a strong correlation between that and having ovaries, which in turn seems somehow connected to losing at sports. Weak wrists are a sex characteristic under Title IX because they are correlated with an assignment of female at birth, which is a characteristic based on sex, a word that is imprecise and should be avoided.

Then the girls would have to prove all that at trial. Compile studies that specify the athletes’ birth certificate sex, bring in an orthopedic hand specialist to testify at $500/hour …

Meanwhile, the school district would have a bevy of defenses at its disposal.

We didn’t discriminate against anyone by sex. Twenty percent of our athletes identify as female, including cheerleading, and that matches the percentage of the student body that identifies as female.

We didn’t spend less money on students with delicate wrists. Look, our diving team is all gay guys!

How could we discriminate against kids with ovaries? We haven’t conducted genital inspections to determine who has ovaries.

Imagine everyone agrees that hormone levels are grounds for distinguishing kids (since the ACLU will hold its fire on that, for now). Then all athletes will have to undergo hormone testing. It would be discrimination to assume an athlete’s hormone levels based on their … what’s the word … At the middle school level, there might be wide variation among boys’ T levels, and they could rise sharply during the school year. Should there be three teams? Four? Leagues might decide not to bother with hormone-segmentation until older ages, in more “serious” competitions.

The ACLU has named sexual orientation as a component of sex. Since androphiles are underrepresented in sport, could they sue for their own division? Then lesbians would be forced to compete against straight boys in the gynephile category. Even in a league that also factored in hormone levels, lesbians would likely lose softball and field hockey as those sports tend to exclude straight girls.

The “sex-related characteristic” scheme is so amorphous and confusing that courts would hesitate to impose strict rules on school districts. Any lame attempt at equitudiness would pass muster.

The good news for female athletes is that right now, at least, nonprofit law firms are willing to fight for them in court. What about female workers?

The Great Masculinization

A few months ago, Helen Andrews dominated the internet by blaming society’s ills on the “feminization” of the workforce. She suggested the reason women gobbled up so many jobs is sex discrimination law – the example she gave was guys having to take down porno calendars from their office walls or else be fired. Not so convincing but anyway, I have advice for Andrews: donate some of that clout to the ACLU because it’s fighting for the discriminatory workplace of your dreams.

Versions of the problems I highlighted above for girls’ sports would bedevil anyone suing an employer (or landlord, or healthcare provider) for discriminating against them on the basis of their sex. And all the nonprofit law firms that traditionally fought for women’s equality in the workplace are allied with the ACLU, i.e., on board with bastardizing sex discrimination law.

By the way: classic sex discrimination law can protect gay and gender-bending people. The only sex-related right it theoretically leaves out is the right to make everyone pretend you are not the sex you are (by “using your pronouns” and letting you into whatever sex-specific spaces you want). But that’s everything to trans rights activists.

Jim Carrey in The Mask (1994) demonstrates how to respond to a sex discrimination lawsuit in 2027

Joshua Block conjures a mustache-twirling villain who would “discriminate against anyone who acts in a feminine manner, like anyone with limp wrists, I don’t care who they are.” Of course Block’s alluding to gay men but he can’t say “gay” or “men” for religious reasons (and he certainly can’t summon a hypothetical female victim).

The portrait doesn’t make sense. If a boss, landlord, or doctor is homophobic then he very much cares who the delicate-wrist haver is – that is, he cares whether the person is male or female. Block’s one example of a valid sex discrimination lawsuit by a “cisgender” person will never actually happen. The ACLU doesn’t take this area of law seriously and appears eager to sacrifice it on the altar of trans ideology.

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1. It’s customary to attribute legal arguments to the parties making them, not their lawyers. But when it comes to the ACLU’s trans-kid lawsuits, we all know who’s driving the agenda. In fact, there’s reason to believe the ACLU unethically tells its witnesses how to testify. I won’t participate in the polite fiction that brainwashed kids and young adults are calling the shots here.