ACLU Attorney Declines to Define “Sex” at Supreme Court; Rep. Nancy Mace and Opposing Counsel Raise Alarms in West Virginia v. B.P.J. Hearing
At a heated Supreme Court hearing in West Virginia v. B.P.J., ACLU lawyer Joshua Block declined to define ‘sex’, prompting criticism from Rep. Nancy Mace and opposing counsel amid disputes over Title IX, transgender athletes, and girls’ sports eligibility.
Key takeaways
- Case at issue: West Virginia v. B.P.J., argued January 13, 2026, concerns a state law banning biological males from girls’ school sports.
- Core dispute: Whether Title IX’s prohibition on sex discrimination covers gender identity and how “sex” should be defined for athletics.
- Contentious exchange: ACLU attorney Joshua Block refused to adopt a fixed legal definition of “sex,” drawing pushback from Chief Justice Roberts and others.
- Broader stakes: The Court’s ruling could reshape eligibility rules, school policies, litigation exposure, and competitive balance nationwide.
Supreme Court hearing: the core exchanges
What happened at argument: At oral argument in West Virginia v. B.P.J., ACLU attorney Joshua Block was pressed on how the Court should interpret “sex” under Title IX. Block told justices he did not think the statute required “an accurate definition of sex” and urged reading Title IX to accommodate claims based on gender identity and behavior rather than solely biological traits.
Concessions under pressure: When asked later, Block allowed 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.” That limited concession did not resolve the larger nationwide question of Title IX’s scope.
Sources: Reporting and transcripts reflected in coverage by Fox News and related outlets.
Chief Justice Roberts presses on definition
Roberts’ concern: Chief Justice John Roberts emphasized that Title IX “prohibits discrimination on the basis of sex, it’s a statutory term, it must mean something.” He asked how the Court could determine discrimination without a determinate statutory meaning of “sex.”
That exchange framed the legal question: can the Court apply Title IX consistently nationwide without first settling what “sex” means under the statute?
Block’s broader framing of sex discrimination
Block argued sex discrimination can extend beyond biological differences: discrimination against people who “act in a feminine manner” could qualify as sex discrimination, he said. While acknowledging biological distinctions, he described “sex” as having “broader connotations.” He also downplayed competitive impact in girls’ cross-country—prompting Justice Gorsuch to note that many sports have roster cuts and would be affected.
Post-hearing exchanges and political reaction
On-camera follow-up: After the hearing Block declined to offer a clearer definition when questioned by reporters. Rep. Nancy Mace shared video of those attempts on Fox News‘s platform and on social media, criticizing the refusal and arguing it undermines the legal basis for sex-based protections.
Rep. Nancy Mace: She said the ACLU’s refusal “has no credibility lecturing anyone about sex discrimination, which is the whole basis of their argument.”
Criticism from opposing counsel
John Bursch of the Alliance Defending Freedom, representing West Virginia and female athletes, called Block’s stance “completely bizarre,” arguing Title IX and the Equal Protection Clause require a definition of sex. Bursch said the statute was enacted with biological distinctions in mind and noted the statute “even refers to each of the sexes,” adding that Block’s refusal “speaks volumes” about the ACLU’s position.
Source: Coverage of these exchanges reported by Fox News and related reporting.
Athletes, schools and the stakes
Competing harms: Block framed exclusion from teams as harm to transgender athletes who wish to compete in alignment with their gender identity. He called displacement of a female athlete “unfortunate” but a result of “zero-sum” competition. Opponents argue biological differences can confer athletic advantages, risking lost roster spots, scholarships, and recognition for girls in many sports.
A Supreme Court ruling will likely set the baseline for how schools manage teams, eligibility, locker rooms, and enforcement—impacting athletes, families, coaches, and athletic programs nationwide.
Legal context and why the definition matters
Title IX forbids sex discrimination in schools receiving federal funds and has been central to protecting opportunities for female athletes. How the Court reads “sex” under Title IX will determine whether protections are limited to biological sex, expanded to include gender identity, or interpreted more narrowly or flexibly—affecting policies on participation, facilities, and funding.
Implications for United States
Economic: Nationwide eligibility changes could alter scholarship distributions, recruiting, budgets, ticket sales, sponsorships, and create new litigation costs for districts and states.
Political: The case has drawn partisan attention: conservatives emphasize protecting women’s sports; Democrats and civil-rights groups stress inclusion. The ruling will shape campaign messaging and mobilize constituencies.
Social and cultural: Families, athletes and schools will feel downstream effects—particularly athletes in cut sports such as basketball, soccer, track and swimming. The dispute intersects with broader cultural debates over sex, gender, and institutional definitions of identity.
Practical applications for schools and states
If the Court adopts a biologically grounded definition of sex, state bans limiting participation by biological males in girls’ sports could be validated. If the Court embraces a broader interpretation including gender identity, states with bans may face legal challenges and required policy changes. Either outcome will force districts and associations to update handbooks, registration procedures, and staff training.
Sources and reporting notes
This article draws on reporting and hearing transcripts as covered by Fox News, Fox News, and additional coverage at Meaww.
Reporting on the hearing shows a clear clash over statutory interpretation, evidentiary standards for competitive advantage, and competing values of fairness and inclusion. The Supreme Court’s ruling in West Virginia v. B.P.J. will provide decisive guidance for schools, athletes and lawmakers nationwide.
