The Supreme Court heard oral arguments last month in *Little v. Hecox* and *West Virginia v. B.P.J.*, two cases challenging state laws that prohibit transgender women and girls from competing on schools' female sports teams. The cases center on whether Idaho and West Virginia laws violate the Constitution's equal protection clause and Title IX, the federal civil rights law that bars sex discrimination in educational programs and activities receiving federal funding.
While observers noted the court appeared skeptical of challenges to the transgender athlete bans, a less scrutinized aspect of the arguments was the language employed by the justices themselves, particularly their choice of pronouns when referring to transgender individuals. This varied significantly among the justices, continuing a pattern of linguistic diversity that has characterized the court for decades.
The justices' approach to gendered language has drawn academic attention before. A 2010 study examining Supreme Court opinions from the 2006-07, 2007-08, and 2008-09 terms found substantial variations in "gendered language" among the justices. The research revealed that four justices - Chief Justice John Roberts and Justices Antonin Scalia, David Souter, and Stephen Breyer - frequently used generic male pronouns. Justice Samuel Alito preferred gender-neutral language, while Justice Ruth Bader Ginsburg alternated between different pronoun choices.
This linguistic diversity was evident even in the court's first decision involving an openly transgender person, the 1994 case *Farmer v. Brennan*. The case involved Dee Farmer, described by her counsel Elizabeth Alexander as "a young, nonviolent prisoner of feminine appearance and demeanor" who sought damages after being sexually assaulted following transfer to a federal prison facility.
During the *Farmer* oral arguments, several justices used female pronouns when referring to Farmer. Justice Sandra Day O'Connor asked about an injunction "to prevent her from being moved to a different facility." Justice Ginsburg and Chief Justice William Rehnquist also used "she" when discussing Farmer's situation, with Rehnquist asking, "Well, where... where would the Government be free to move her if she gets her injunction?"
In contrast, Deputy U.S. Solicitor General Paul Bender, representing the federal government, consistently used male pronouns, stating "he is presently in administrative detention at Florence." Justice Scalia similarly referred to Farmer with male pronouns.
The current transgender sports cases present similar linguistic choices for the justices. The Idaho law requires students to compete in sports categories that align with their "biological sex," while West Virginia's statute contains comparable restrictions. Both states argue their laws protect opportunities for cisgender female athletes and maintain competitive fairness.
Challengers to these laws contend they violate equal protection guarantees and Title IX's prohibition on sex discrimination. They argue that excluding transgender students from sports teams consistent with their gender identity constitutes unlawful discrimination and denial of educational opportunities.
The pronoun choices made by justices during oral arguments may reflect their broader perspectives on transgender rights and constitutional interpretation, though legal scholars caution against drawing definitive conclusions about voting patterns based solely on language use. The court's ultimate decisions in these cases will likely turn on complex legal questions about the scope of equal protection, the meaning of "sex" in Title IX, and the balance between competing interests.
Both cases have generated intense public interest and legal debate. The outcomes could significantly impact transgender students' participation in school athletics nationwide and establish important precedents for how courts interpret anti-discrimination laws in the context of transgender rights.
The court's handling of these cases comes as state legislatures across the country have enacted various restrictions on transgender students' participation in sports and other school activities. Legal challenges to these measures have produced conflicting lower court decisions, making Supreme Court guidance particularly significant.
A decision in the cases is expected by the end of the court's current term in June. The ruling will likely influence ongoing legislative debates and litigation involving transgender rights in educational settings, potentially affecting millions of students nationwide.
The justices' linguistic choices, while perhaps offering limited predictive value for their ultimate votes, nonetheless reflect the evolving nature of legal discourse around gender identity and the challenges courts face in addressing these complex constitutional questions.