ACLU Attorney’s Refusal to Define “Sex” Sparks Controversy in Supreme Court Trans Athlete Case
In a contentious Supreme Court hearing that sits at the intersection of gender identity and women’s sports, an attorney for the American Civil Liberties Union (ACLU) created waves by refusing to define “sex” – the very concept at the heart of the case. Joshua Block, representing transgender athlete Becky Pepper-Jackson of West Virginia, urged the Supreme Court justices not to consider defining sex when ruling on the case, stating plainly: “I don’t think the purpose of Title IX is to have an accurate definition of sex.” This surprising stance came during arguments about whether transgender girls should be permitted to compete on female athletic teams, with Block later conceding that “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.” The controversy intensified when Block refused to provide his own definition of sex to reporters after the hearing, quickly avoiding further questioning – a moment captured on video and shared widely by Republican Representative Nancy Mace of South Carolina, who criticized the ACLU for “refusing to define ‘sex'” when their argument centered on sex discrimination.
The evasion drew sharp criticism from legal opponents in the case. John Bursch of Alliance Defending Freedom, representing female athletes and West Virginia, expressed bewilderment at Block’s position, calling it “completely bizarre.” Bursch questioned how anyone could decide a case interpreting sex under Title IX without defining the term, emphasizing that “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.” His frustration highlights the fundamental divide in this cultural flashpoint: whether gender identity or biological sex should determine eligibility for women’s sports. Bursch suggested the ACLU’s reluctance to define sex revealed a weakness in their position, saying “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.”
During the hearing’s more substantive arguments, Block attempted to minimize the impact of transgender athletes on women’s sports by suggesting that in cross-country – Pepper-Jackson’s sport – team cuts aren’t typically made, therefore no girl loses an opportunity due to transgender participation. This reasoning was quickly challenged by Justice Neal Gorsuch, who pointed out that many sports do have cuts, and the Court’s ruling would affect those sports as well. Block’s response revealed the difficult balancing act at the core of this debate – acknowledging the reality of competition while arguing for inclusion. He noted that “No one likes to lose. No one likes to not make the team,” and that cisgender girls frequently don’t make teams when competing against other cisgender girls, framing the issue as whether transgender participation represents an “unfair advantage” rather than simply a different outcome.
Perhaps most tellingly, Block characterized the potential displacement of female athletes by transgender competitors as “an unfortunate situation” that stems from “having a zero-sum game, not with inherent unfairness.” This framing attempts to recast the debate from one about biological advantages to one about the inherent limitations of competitive sports where not everyone can win or participate. Block also argued for the emotional and psychological considerations at stake, noting that “There’s a group of people who are assigned male at birth, for whom being placed on the boy’s team is harmful.” This perspective shifts the conversation from purely physical competition to include the well-being of transgender youth, suggesting that both sides of this debate involve potential harms that must be weighed.
The Supreme Court’s eventual ruling will likely become a landmark decision in America’s ongoing cultural conversation about transgender rights, women’s sports, and the meaning of sex-based protections. The case highlights the tension between competing interpretations of Title IX, which prohibits sex discrimination in educational programs receiving federal funding. Historically, “sex” in this context referred to biological distinctions between males and females, but evolving understandings of gender identity have challenged this interpretation. The Court must now navigate between these perspectives, considering both the original intent of sex-based protections and the lived realities of transgender individuals seeking inclusion in activities aligned with their gender identity.
This case represents far more than a legal dispute about athletic participation; it embodies fundamental questions about identity, fairness, inclusion, and how society balances competing interests when rights appear to conflict. The ACLU’s reluctance to define “sex” may be strategic legal maneuvering, but it also reflects the complex nature of the issue itself – where traditional definitions are being questioned and redefined through lived experience. As the Supreme Court deliberates, Americans on both sides watch closely, understanding that the decision will shape not just sports participation rules but also broader cultural understandings of gender, fairness, and opportunity. Whatever the outcome, this case demonstrates how deeply personal identities have become intertwined with public policy, creating a challenge that extends far beyond the running tracks and playing fields where it began.
