Alito’s ‘What Is A Lady?’ Query Leaves Leftist Legal professional Flailing

In a high-profile case before the Supreme Court, Associate Justice Samuel Alito left a left-wing attorney scrambling with a series of simple questions about biological sex.

The moment came during oral arguments for Little v. Hecox, one of two cases (West Virginia v. B.P.J.) heard by the high court on Tuesday that center around state laws protecting women’s sports from trans-identifying men. The justices will determine whether the statutes violate the 14th Amendment’s equal protection clause, or, in West Virginia’s case, Title IX.

In his line of questioning, Alito asked Kathleen Hartnett, who represented the trans-identifying male challenging the Idaho law (Lindsay Hecox), about some “basics” regarding biological sex and rules governing it. He began by probing whether Hartnett believed that “a school may have separate teams for a category of students classified as boys and a category of students classified as girls,” to which Hartnett answered in the affirmative.

Citing Hartnett’s answer, Alito then asked the left-wing attorney, “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?” Once again, Hartnett said, “yes.”

While Hartnett seemingly had no trouble answering those questions, the justice’s basic follow-up proved to be a real struggle for her. When asked by Alito what it means — “for equal protection purposes” — “to be a boy or a girl or a man or a woman,” the left-wing lawyer flailed.

After initially expressing confusion about the justice’s question, Hartlett subsequently declined to provide a definitive answer. She said that she believes “that the underlying enactment, whatever it was — the policy, the law — … 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’re not disputing the definition here,” Hartlett said. “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.”

The answer didn’t appear convincing to Alito. The Bush appointee further probed Hartlett on how courts are supposed to be able to “determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes.”

Once again, Hartlett struggled to provide a compelling answer. Using a female pronoun to refer to her male client, Hartlett said, “We basically know that [Idaho has] identified, pursuant to their own statute, [that] 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,” Hartlett said.

Circling back to his school hypothetical, Alito posed a scenario in which the school has a men and women’s track team, as well as a “student who has the genes and the reproductive system of a male and had those at birth and has never taken puberty blockers, never taken female hormones, never had any gender-altering or -affirming surgery.” This student, Alito surmised, then “says, ‘Nevertheless, I am a woman, that’s who I am.’”

“Can the school say, ‘No, you cannot participate on the girls’ team?’” Alito asked.

Hartlett agreed that the school could ban such a male from competing on the women’s team, leading Alito to probe, “Is that person not a woman in your understanding?”

In her response, Hartlett said that she “would respect their self-identity in addressing the person, but in terms of the statute, I think the question is, ‘Does that person have a sex-based biological advantage that’s going to make it unfair for that person to be part of the women’s team?’”

“And that’s the rationale for the regulation. And so that’s the that’s the way we’d be testing that hypothetical,” Hartlett added.

“The reason I’m asking,” Alito pressed, “has to do with discrimination on the basis of transgender status. So, what you seem to be saying is, ‘Yes, it is permissible for the school to discriminate on the basis of transgender status.’ Because if this person is a ‘trans woman,’ a ‘trans girl,’ and is barred … from the girls’ team, then that person is being subjected to differential treatment based on transgender status, right?”

Hartlett replied that such a hypothetical would then center around the question of “whether scrutiny would be satisfied.” She further expressed her team’s belief that it would be a “transgender classification,” which she claimed would be subject to a higher form of scrutiny by courts.

Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He is a co-recipient of the 2025 Dao Prize for Excellence in Investigative Journalism. His work has been featured in numerous outlets, including RealClearPolitics and RealClearHealth. Follow him on Twitter @ShawnFleetwood