Fox Legal Analyst Argues Trans Athlete Debate Boils Down to One Big Question From Justice Alito

Fox News legal editor Kerri Urbahn argued the trans athlete debate before the U.S. Supreme Court on Tuesday “boiled down” to one big question from Justice Samuel Alito: how can “discrimination” against trans athletes on the basis of sex be determined “if we don’t even know what sex is?”

Urbahn told Outnumbered co-hosts Harris Faulkner and Emily Compagno that was the underlying issue that was “cutting through all the noise.”

She said not having a state definition of what a man or woman is makes it impossible to decide whether trans athletes have had their rights violated. Urbahn added it was absurd the case had even reached the Supreme Court to begin with.

“We can talk about suspect classes and what’s equal protection under the law. But at the end of the day, we are talking about biological boys and men who are imagining themselves to be women and wanting to participate in women’s sports and thereby displacing women and taking away scholarship opportunities and the like,” Urbahn said. “It’s kind of shocking, Emily, I think that we’re even here at the Supreme Court having to discuss this and litigate this.”

The Little v. Hecox case before the court originated in Idaho. It concerns the state law banning trans girls and trans women from participating in women’s school sports — a law that was challenged by Boise State University student Lindsay Hecox, who wanted to join the women’s track and cross country teams at the college.

Urbahn referred to a moment on Tuesday where Alito pressed Hecox’s attorney Kathleen R. Hartnett.

Here was that back-and-forth via Fox News:

“What we’re saying is the way it implies in practice is to exclude birth-sex males categorically from women’s teams and there is a subset of those birth-sex males where it doesn’t make sense to do so according to the state’s own interest,” Hartnett said.

Alito then asked, “How can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?”

“I think here we just know, we basically know that they’ve identified pursuant to their own statute, Lindsay qualifies as a birth-sex male and she is being excluded categorically from the women’s teams as the statute,” Hartnett responded. “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?”

Alito then posed a hypothetical question to Hartnett about a boy who has never taken any kind of puberty blockers or other medication but believed they were a girl and whether a school can say the boy cannot participate on a girls’ sports team.

Hartnett suggested the hypothetical wasn’t necessarily what her side was arguing.

The U.S. Olympic Committee banned trans women from competing in women’s sports last summer — in compliance with an executive order signed by President Donald Trump.

Urbahn said it was “misogyny in policy” to change sports to allow trans women to compete against women.

“It is saying to the boys, it is saying to the men, that your feelings and your desires trump that of the girl athletes, no matter what,” she said.

Watch above.