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JUSTICE ALITO: Well, to pick up on the issue of discrimination on the basis of transgender status, let me just go back to --let me go to some basics. Do you agree that a school may have separate teams for a category of students classified as boys and a category of students classified as girls?
MS. HARTNETT: Yes, Your Honor
JUSTICE ALITO: 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? MS.
HARTNETT: Yes, Your Honor.
JUSTICE ALITO: 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?
MS. HARTNETT: 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: 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?
MS. HARTNETT: I think here we just know --we --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 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?
JUSTICE ALITO: All right. Suppose this school that has a boys', let's say, track team and a girls' track team. A school has that. And 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, says, nevertheless, I am a woman. That's who I am. Can the school say no, you cannot participate on the girls' team?
MS. HARTNETT: Sorry. So your hypothetical --just a birth-sex male who has all the --
JUSTICE ALITO: Right. Exactly.
MS. HARTNETT: --advantages a birth-sex male, hormones?
JUSTICE ALITO: Yes.
MS. HARTNETT: And can the school bar him from the women's team?
JUSTICE ALITO: Yes.
MS. HARTNETT: Yes, they can.
JUSTICE ALITO: But that person --is that person not a woman in your understanding? If the person says, I sincerely believe I am woman, I am, in fact, a woman --
MS. HARTNETT: I think we --
JUSTICE ALITO: --is that person not a woman?
MS. HARTNETT: I --I 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 --that's the rationale for the regulation, and so that's the reason --that's the way we would be testing that hypothetical.
