In law school, I did sometimes dream of arguing at the Supreme Court.
I never imagined I’d have to avoid the words “he” and “she.”
This week, the Supreme Court decided my case, Little v. Hecox, and ruled that biologically male transgender athletes do not have a constitutional right to play girls’ or women’s sports.
The outcome is correct but not surprising; aside from the legal issues, it’s a position that a large majority of Americans agree with — somewhere between 65% and 80%, depending on the poll.
And yet this is strangely still an issue where taking the “wrong” position (i.e., the majority position) can provoke outrage from people who disagree. Witness the strange truth that, in one 2025 poll, 67% of Democratic voters agreed that only biologically female athletes should be allowed to play girls’ or women’s sports — and yet not a single prominent Democratic politician supports laws to that effect.
When Rep. Seth Moulton, D-Mass., tried moving in that direction, his campaign manager quit in protest. Tufts also threatened to stop sending him interns.
How can you persuade the persuadable when the unpersuadable are willing to attempt ostracism over any disagreement?
Lesson 1: If you want to persuade, avoid unnecessary offense
In Hecox, everybody had their guesses about what the justices would do, but the exact outcome was still in the air. We were all perpetually aware that offending even a single justice could hurt our case.
Avoiding offense was especially difficult because there was no neutral way to describe the facts.
What should we call biologically male athletes that identified as female and wanted to play girls’ sports? Calling them “boys” and “men” or “he” and “him” could easily become a distraction and invite a liberal justice to burn precious minutes of our argument time demanding an explanation for our insensitivity.
We ultimately settled on phrases like “male athletes” or “male athletes who identify as transgender,” hoping the words’ clinical sound would minimize offense and sidestep any arguments about “what is a woman?” And then I spent weeks rehearsing my arguments without using any gendered pronouns at all.
And it worked — none of the justices grilled me about our choice of language. Justice Amy Coney Barrett referred to the male athletes as “trans girls” and “transgender women”; Justice Ketanji Brown Jackson once referred to them as “he.” Nobody made a big deal of it, and we were able to focus on our arguments.
The majority opinion, when it was announced, took nearly the same approach we did, avoiding gendered pronouns but calling the athletes who challenged the law “boys who identify as girls” rather than “trans women.”
Lesson 2: Tell the truth, even if some people are offended
Despite all the care we took, we were still criticized for not adopting the other side’s language wholesale — “she/her,” “trans women,” “cisgender” and the rest. According to our opponents, any other language harms transgender people by failing to affirm their identities.
Why didn’t we just say the words the other side wanted and avoid the controversy entirely? There was a principled reason — i.e., not saying things we think are false — but we also had a case to win.
We were challenging a Ninth Circuit decision that struck down Idaho’s girls’ sports law, and the decision depended on the circuit’s conclusion that Idaho’s definition of “biological sex” was “an oversimplification of the complicated biological reality of sex and gender.”
According to the circuit, sex is a spectrum and depends on people’s subjective identities, and therefore the Idaho Legislature’s use of a purely physical sex binary proved that it intended to single out trans people.
And, more simply, if the athletes challenging the law were women, then how could the state promote women’s athletic opportunity by excluding them?
If we wanted to win the case, we had no choice but to challenge the Ninth Circuit’s false assumptions. We couldn’t do that while saying “she” and “trans woman” — every time we used that language, we’d be conceding the Ninth Circuit was right.
As Justice Clarence Thomas put it in his concurrence, “Sex is an immutable ‘biological’ characteristic … it is binary; and ‘man’ and ‘woman,’ ‘boy’ and ‘girl,’ are the terms that correspond to adults and children of each sex. To use language to obscure reality — to show indifference regarding the truth — is to lie to the public and cease to treat our fellow citizens as equals.”
Lesson 3: Institutions matter
There are still plenty of places in America where our arguments would have gotten us yelled at and thrown out, but in the Supreme Court, we could make our case. Why?
Because inside that courthouse is an institution built for disagreement and persuasion.
When I walked out of the courthouse, I was greeted by two sides waving signs and trying to shout over each other, chanting slogans simultaneously through bullhorns.
I defy you to find a single person whose opinion was changed by either of those protests, because persuasion wasn’t the point. The point was to motivate those already persuaded — to let them know their side is still fighting and they shouldn’t give up.
And there’s a place for that. But rarer today and more valuable are the places like the Supreme Court, places where people don’t chant slogans through bullhorns but rather take turns giving reasons for their opinions and — crucial point! — when it’s not their turn, sit quietly and listen.
How has the Supreme Court stayed that way when so much of our politics hasn’t?
The short and practical answer is that the Supreme Court has rules — and armed marshals who will throw you out if you break them. The lack of TV cameras helps, too.
But more powerful even than the marshals with guns was that all of us believed in what we were doing.
It was impossible not to be aware, if only subconsciously, that Brown v. Board of Education, Gideon v. Wainwright and West Virginia v. Barnette were argued where I was standing — that before these justices sat in those chairs, there were others whose names I grew up reading in the news and the history books: Scalia, Ginsburg, Rehnquist, Warren.
You could see on the face of nearly everyone in that courtroom, from the chief justice to the youngest wide-eyed kid on the benches, that they shared some of that feeling — that awe for the institution and the moment, that realization that this will be in history books, and we will tell our children we were there.
When I grew up, it seemed most people felt a similar, if softer, awe toward American democracy generally. From the news, at least, it seems most people don’t anymore. I think that loss has many causes, some accidental and some otherwise; I suspect the Supreme Court itself bears some of the blame.
But in the long run, if we’re able to free ourselves from the literal and metaphorical bullhorns and bring persuasion back to our politics, I think it will be because people have learned to recover some of that feeling — because somehow, we’ve learned again that our country and our neighbors deserve it.