Questioning from Supreme Court justices strongly suggests the high court is prepared to uphold state laws that bar biological males from competing in female school sports, West Virginia Attorney General JB McCuskey said on Newsmax Wednesday.
He told Newsmax's "National Report" that the challengers struggled to explain their position under Title IX and the Constitution.
Following nearly 3½ hours of Supreme Court arguments, McCuskey said the justices appeared skeptical of claims brought by the American Civil Liberties Union (ACLU), which is challenging state laws designed to preserve sex-based categories in athletics.
According to McCuskey, the court repeatedly pressed the plaintiffs to clarify how their interpretation of sex discrimination could function without a clear definition of sex.
"The justices were incredibly thorough," McCuskey said. "What we saw was their attempt to try to get the ACLU to explain what their position was."
McCuskey pointed to exchanges in which the plaintiffs argued that the laws at issue do not violate Title IX or the Equal Protection Clause, but should not apply to what they described as a very small subset of individuals. He said that focus raised red flags for the court and undermined the broader legal challenge.
"They're hanging their entire case on an enormously small subset of people," McCuskey said, adding that the argument centered on children whose parents have pursued medical interventions to suppress puberty at an early age.
A key moment, McCuskey said, came when Justice Samuel Alito pressed the plaintiffs' attorney to define "sex" for equal protection purposes. The lawyer declined to offer a definition while simultaneously referring to "birth sex males," a contradiction McCuskey said that did not go unnoticed by the justices.
McCuskey also defended the original intent of Title IX, arguing that Congress relied on a clear, biological understanding of sex when it enacted the law more than five decades ago. He said abandoning that definition would make it impossible for states to ensure fairness and safety in athletic competition.
The West Virginia attorney general said the challengers' reliance on rare and extreme circumstances only underscores why the laws should stand, noting that sex-based differences in size, strength, and speed remain relevant in sports.
"They don't want to define sex because they know if they do, they lose," McCuskey said. "The law was written with common sense, and the court seemed to recognize that."
The Supreme Court is expected to issue a ruling later this year, a decision that could have sweeping implications for Title IX enforcement and state authority to regulate school athletics nationwide.
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Brian Freeman ✉
Brian Freeman, a Newsmax writer based in Israel, has more than three decades writing and editing about culture and politics for newspapers, online and television.