As the Supreme Court held oral arguments on Tuesday on a case about transgender sports, MS NOW senior legal reporter Lisa Rubin and professor and podcaster Leah Litman assembled on Ana Cabrera Reports to allege that observing biological differences between the sexes is a right-wing fear campaign and the sort of sex discrimination not allowed by the Constitution.
Cabrera asked Rubin, “Transgender rights have been a major political flashpoint. In fact, NPR found that the Trump campaign played attack ads on transgender athletes 15,000 times in 2024. Will those politics play a role at all at what happens at the Supreme Court?”
After answering that she hoped not, Rubin claimed that the political ones are the ones who passed high school biology class, “With respect to what comes in the courtroom, I mean, I don't know how you can disaggregate the politics from this legal issue. The very fact that we're talking about the difference between biological males and cisgender males has been foisted upon us by a campaign of fear being driven by the right against some women who want to participate in women's sports.”
Rubin rolled on, “One of the plaintiffs here, Becky Pepper-Jackson, she was the plaintiff and is now the respondent in the West Virginia case, she transitioned when she was in third grade, has never undergone the kind of puberty that a biological male would necessarily go through.”
It was a testament to the absurdity of the segment that Rubin could mention that society is transitioning third graders and giving sixth graders hormones, and MS NOW just treated it as if it were the local traffic report. As for Rubin, she added, “And so her argument is, to Leah's point, you know, sort of some men, but not all men. She says that from a biological standpoint, she is indistinguishable from other women. And so to foist upon her the expectations that we have of most biological men is simply unfair and unconstitutional as to her.”
It should be noted that Pepper-Jackson placed third in the state discus championship as a freshman. The winner, Cianna Groom, is one of the best throwers in the country.
As it was, Cabrera turned to Litman and wondered, “Leah, what did the lower courts say on these cases? And will that play into the justices' thinking?”
For a law professor, Litman struggled with the idea that words have meanings, “So, the lower courts in both cases concluded that the bans on transgender athletes were unconstitutional for the reasons that Lisa and I have been explaining, namely, they distinguish between people based on their sex assigned at birth, and they rely on overbroad generalizations and sex stereotyping in order to justify that discrimination.”
Differences in muscle mass, lung capacity, and other things are facts. Stereotyping is saying, “Women are too emotional.” Sex discrimination is saying, “Men are preferable to women in STEM careers.”
Nevertheless, Litman proceeded:
Those sort of stereotypes and generalizations generally aren't sufficient to allow states to engage in sex discrimination. You know, here, the state's argument is basically we are just going to presume that all people who are assigned the male sex at birth are better at sports and better at any particular sport than people who are assigned the female sex at birth. And they are going to assume, you know, that it would be unfair in every single sport, as applied to every single individual, to allow trans women to participate in sports, and the lower courts correctly, in my view, rejected those arguments as inconsistent with constitutional principles of sex discrimination.
Litman then declared that acknowledging the physical differences between men and women would be a reversal of Supreme Court precedent, “Now, of course, the cases are now at the Supreme Court. They are not bound by the decisions of the lower federal courts, and they also view themselves as, frankly, less bound by the Supreme Court's own prior cases. And so this case could be an occasion where the Supreme Court fundamentally changes the law on sex discrimination and equal protection.”
That’s ridiculous. The only reason Title IX exists in sports is because up until about five minutes ago, everybody recognized the physical differences between males and females.
Here is a transcript for the January 13 show:
MS NOW Ana Cabrera Reports
1/13/2026
10:22 PM ET
ANA CABRERA: Of course, Lisa, transgender rights have been a major political flashpoint. In fact, NPR found that the Trump campaign played attack ads on transgender athletes 15,000 times in 2024. Will those politics play a role at all at what happens at the Supreme Court?
LISA RUBIN: Well, you'd hope that the politics are outside—out of the courtroom. And I will say, our producers have noticed a protest outside the Court today that is larger than anything else that they've seen this year. So, the politics around this, you're correct to observe, are quite large.
With respect to what comes in the courtroom, I mean, I don't know how you can disaggregate the politics from this legal issue. The very fact that we're talking about the difference between biological males and cisgender males has been foisted upon us by a campaign of fear being driven by the right against some women who want to participate in women's sports.
One of the plaintiffs here, Becky Pepper-Jackson, she was the plaintiff and is now the respondent in the West Virginia case, she transitioned when she was in third grade, has never undergone the kind of puberty that a biological male would necessarily go through.
And so her argument is, to Leah's point, you know, sort of some men, but not all men. She says that from a biological standpoint, she is indistinguishable from other women. And so to foist upon her the expectations that we have of most biological men is simply unfair and unconstitutional as to her.
CABRERA: Leah, what did the lower courts say on these cases? And will that play into the justices' thinking?
LEAH LITMAN: So, the lower courts in both cases concluded that the bans on transgender athletes were unconstitutional for the reasons that Lisa and I have been explaining, namely, they distinguish between people based on their sex assigned at birth, and they rely on overbroad generalizations and sex stereotyping in order to justify that discrimination.
Those sort of stereotypes and generalizations generally aren't sufficient to allow states to engage in sex discrimination. You know, here, the state's argument is basically we are just going to presume that all people who are assigned the male sex at birth are better at sports and better at any particular sport than people who are assigned the female sex at birth.
And they are going to assume, you know, that it would be unfair in every single sport, as applied to every single individual, to allow trans women to participate in sports, and the lower courts correctly, in my view, rejected those arguments as inconsistent with constitutional principles of sex discrimination.
Now, of course, the cases are now at the Supreme Court. They are not bound by the decisions of the lower federal courts, and they also view themselves as, frankly, less bound by the Supreme Court's own prior cases. And so this case could be an occasion where the Supreme Court fundamentally changes the law on sex discrimination and equal protection.
