ACLU Admits They Have No Definition of Boy or Girl [WATCH]

A sharp exchange between Supreme Court Justice Samuel Alito and attorney Kathleen Hartnett unfolded during oral arguments over a policy that categorically excludes male students from participating on women’s sports teams, centering on whether courts must define “boy” and “girl” for equal protection purposes.

The discussion focused on how a court should analyze an equal protection challenge to a law or policy that separates students based on sex, particularly when the exclusion is categorical.

Justice Alito repeatedly pressed Hartnett on whether such an analysis is possible without a clear understanding of what sex means under the Constitution.

Justice Alito began by clarifying the structure of the policy at issue.

“For a category of students classified as boys and a category of students classified as girls,” Alito said.

“Yes, your Honor,” Hartnett replied.

Justice Alito then turned directly to the constitutional implications of that classification.

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“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?” he asked.

“Yes, Your Honor,” Hartnett responded.

Alito followed up by asking for that definition.

“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?” he said.

Hartnett paused and indicated she had misunderstood the question, then explained her position.

“Sorry, I misunderstood your question. I think that the underlying enactment, whatever it was, the policy, the law, the would have to, we’d have to have an understanding of how the state or the government was understanding that term to figure out whether or not someone was excluded. We do not have a definition for the court and we don’t take issue with the we’re not disputing the definition here. What we’re saying is that the way it applies in practice is to exclude birth sex males categorically from women’s teams, and that there’s a subset of those birth sex males where it doesn’t make sense to do so according to the state’s own interest.”

Justice Alito was unconvinced that the court could avoid grappling directly with the meaning of sex while evaluating discrimination claims.

“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?” Alito asked.

Hartnett answered by pointing back to the statute itself and how it is applied.

“I think here we just know that. 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 statutes 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.”

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