ACLU’s Joshua Block refuses to define “sex” after arguing the definition should not be used in trans athlete debate. That single line captured the tension spilling out of the Supreme Court this week as a major case on transgender participation in women’s sports unfolded.
The exchange quickly escalated into a political firestorm after Rep. Nancy Mace, R-S.C., blasted American Civil Liberties Union attorney Joshua Block for refusing to define sex, even as he argued the justices should not consider its meaning when ruling on transgender athlete Becky Pepper-Jackson’s case.
Block Urges Court to Avoid Defining Sex
Block, who represents Pepper-Jackson of West Virginia, pushed the nine justices to sidestep the central question entirely.
Block told the court, “I don’t think the purpose of Title IX is to have an accurate definition of sex.”
That line instantly ignited debate. Moments later, Block added a narrower concession, saying, “I think 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.”
However, when pressed afterward to explain what he personally believes sex means, Block declined to answer and stepped away from further questions.
Mace Calls Out ACLU for Avoidance
Mace immediately seized on the viral footage of Block dodging the question and posted it online. She delivered a sharp rebuke, writing, “If the ACLU can’t even define what sex is, they have no credibility lecturing anyone about sex discrimination, which is the whole basis of their argument.”
Her remarks amplified the political stakes of the hearing, which is widely viewed as a defining moment in the national fight over transgender athletes in women’s sports.
ADF Attorney: Refusing to Define Sex Is ‘Completely Bizarre’
John Bursch of Alliance Defending Freedom, whose firm represents female athletes and the state of West Virginia, said he was stunned by the ACLU’s approach. He described Block’s refusal to define sex as “completely bizarre.”
He elaborated, saying, “That’s completely bizarre. I don’t know how you can decide a case interpreting sex under Title IX and under the equal protection clause by not defining sex.”
Bursch also argued the legal text itself makes the meaning clear. “Sex, when Title IX was passed, meant biological sex. The entire statute was written with biological distinctions. It even refers to each of the sexes. I don’t know how the court can do that, and it says a lot that he felt and the ACLU felt they had to tell the court not to define sex in order for them to survive this case.”
Debate Turns to Competitive Impact in Girls Sports
Earlier in the hearing, the justices pressed Block about Pepper-Jackson’s participation on a girls’ cross-country team. Block minimized the effect on other athletes, arguing that cross-country does not involve cuts.
Justice Neil Gorsuch countered by pointing out that many sports do have cuts and that the court’s ruling will influence a wide range of competitive environments.
Block then compared the situation to competition among female athletes themselves. He said, “No one likes to lose. No one likes to not make the team. People often don’t make the team. Cisgender girls don’t make the team when competing against other cisgender girls all the time, and I think the question … is whether it’s an unfair advantage because a transgender girl participated.”
He continued, “And if there is no sex-based biological distinction there, then I think it’s an unfortunate situation. But I think it’s the unfortunate situation that comes with having a zero-sum game, not with inherent unfairness.”
Block Argues Placement on Boys’ Teams Can Be Harmful
At another moment in the hearing, Block referenced the broader experience of transgender athletes who are assigned male at birth. He argued, “There’s a group of people who are assigned male at birth, for who being placed on the boy’s team is harmful.”
His position underscored the human aspect of the case but did little to settle the core dispute over whether sex must be defined to adjudicate claims under Title IX.
A Case Poised to Shape the National Debate
The Supreme Court’s decision will likely ripple far beyond West Virginia. The justices are weighing not only the future of Pepper-Jackson’s athletic eligibility but the broader legal boundaries around sex, fairness, and competition in women’s sports.
As both sides brace for a ruling, one question continues to hang over the entire debate: can the nation’s highest court decide a case centered on sex discrimination without defining sex at all?
