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Bisexuals: The neglected stepchild of the LGBTQ rights movement?

Activists say disparaging views from gays and straights are lessening, but bias continues

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A participant in a Pride event holds the bisexual Pride flag. (Photo by Ink Drop/Bigstock)

Bisexual rights advocates point out that a recent Gallup Poll using scientifically proven polling techniques shows that 58.2 percent of people in the U.S. who make up the LGBTQ community identify as bisexual.

And for many years, bi activists say, earlier polling data have shown that people who self-identify as bi have comprised close to 50 percent of the overall LGBTQ population.

Yet in spite of this, a half dozen prominent bisexual rights activists interviewed by the Washington Blade who have been involved in the LGBTQ movement for 20 years or longer say bisexuals for the most part have been neglected and treated in a disparaging way in the early years of the post-Stonewall LGBTQ rights movement.

Things began to improve in the past 15 years or so, but misconceptions and biased views of bisexuals among lesbians and gays as well as in the heterosexual world continue to this day, according to bisexual rights advocates.

These advocates point to the one major stigma they have had to endure for years—the belief that they cannot make up their minds or they are hiding the fact that they are gay men or lesbian women.

“For the record, I state that bisexuality is not a counterfeit behavior or a phase,” said longtime bisexual rights advocate Cliff Arnesen in a statement to the Blade. “It is a true sexual orientation of physical and emotional attraction to both genders,” he said. “I believe some of the apprehension to a person’s bisexual orientation lies within the mindset of people who oppose the concept of bisexual people having ‘heterosexual privilege,’” Arnesen says in his statement.

Arnesen, 74, a resident of Canton, Mass., is a U.S. Army veteran and has also been an advocate for military veterans, both LGBTQ and straight. He says one of the highlights of his many years of activism took place May 3, 1989, when he became the first known openly bisexual veteran in U.S. history to testify before a committee of the U.S. Congress on behalf of LGBTQ and heterosexual veterans.

Among the issues he discussed in his testimony, Arnesen says, were HIV/AIDS, post-traumatic stress disorder, homelessness, gays in the military, and the then Uniformed Code of Military Justice sodomy law impacting LGBTQ people in the military.

He also told the Subcommittee on Oversight and Investigations of the U.S. House Committee on Veterans Affairs in his 1989 testimony about efforts by him and other LGBT veterans to advocate for the upgrade of less-than-honorable discharges of people in the military based on their sexual orientation.

“Bisexual people have always made enormous contributions of benefit to the larger gay community,” Arneson told the Blade. “Yet historically we are marginalized by many in both the gay community and society,” he said.

“To counter that marginalization, we bisexual people must use the ‘key of visibility’ to enlighten and educate the masses as regards to their preconceived misconceptions of bisexuality.”

Arnesen is among at least five other elder U.S. bisexual rights advocates who told the Blade they are seeing positive changes in recent years for bisexuals, including among the national LGBTQ organizations that, according to these activists, ignored the ‘bi’ in the movement for far too long.

Among them are longtime D.C. residents Loraine Hutchins, who co-founded the organizations BiNet USA and the Alliance of Multicultural Bisexuals, and A. Billy S. Jones-Hennin, who in 1978 helped launch the National Coalition of Black Gays, the nation’s first advocacy organization for African-American lesbians and gay men.

From left, A. Billy S. Jones-Hennin and Cliff Arnesen. Jones-Hennin served as logistics coordinator for the first March on Washington for Gay and Lesbian Rights in 1979. Longtime bi activist Arnesen became the first known openly bisexual military veteran to testify before a committee of the U.S. Congress in 1989 on behalf of LGBTQ veterans. (Photo by Christine M. Hurley Photography; used with permission)

Jones-Hennin is also credited with helping to organize one year later the first national March on Washington for Lesbian and Gay Rights in 1979. During the same weekend of the march, he helped to convene what observers call an historic National Third World (People of Color) LGBTQ Conference at D.C.’s Howard University.

Hutchins, co-editor of the acclaimed 1991 book, “Bi Any Other Name: Bisexual People Speak Out,” holds a doctorate in cultural studies and has taught sexuality and gender and women’s studies at Montgomery College and Towson University in Maryland.

Hutchins is now retired and lives in a retirement community in Montgomery County, Md. She told the Blade she has seen some positive changes in recent years within the overall LGBTQ rights movement and LGBTQ rights organizations toward bisexuals. She notes that the National LGBTQ Task Force’s current executive director, Kierra Johnson, identifies as bisexual.

The Task Force and the Human Rights Campaign, the nation’s largest LGBTQ rights advocacy organization, “have gotten much stronger on understanding bi advocacy or bi education,” Hutchins said.

But despite this, she said, she doesn’t see sufficient advances regarding the needs of bisexual people being fully taken up at the federal policy-making level, including in the administration of President Joe Biden, even though she sees the Biden administration as being better than previous administrations on bisexual issues.

BiPlus Organizing U.S., a national coalition of bisexual rights organizations, reports on its website that bisexual advocates held “three important convenings with the White House” during the Obama administration in 2013, 2015, and 2016. It says a small group of bi activists met with White House officials and officials with the U.S. Department of Health and Human Services in 2022 under the Biden administration during Bisexual Awareness Week.

Fiona Dawson, one of the co-founders of BiPlus Organizing U.S., said the meeting between bi advocates and the Biden administration officials took place at the Department of Health and Human Services offices rather than at the White House.

Dawson, who is from the United Kingdom and now works as a filmmaker based in Austin said the meeting was productive but she and other bi activists would like the Biden White House to hold an official White House reception for the bi community like the reception it holds for the full LGBTQ community.

“We want more bi organizations to contact us,” Dawson said in describing the work of BiPlus Organizing U.S. “I estimate that there are at least 20 bi organizations nationwide,” she said, with most of the groups being locally based. “I see change coming,” she added, saying the younger generation of LGBTQ people, including bisexuals, are becoming more supportive of bi rights.

Many bisexuals now identify as ‘bi-plus’

Jones-Hennin, who attended the first White House meeting with bisexual rights advocates during the Obama administration, said the lack of information about bisexuality in the media and from gay rights groups going back to the 1970s played a role in his own coming out process as a bisexual man.

“I started as straight and then as a gay man,” Jones-Hennin recalls. “I at first did not buy into the idea of being bi,” he said. “Bisexuals have been erased and to a certain degree that’s still happening. We need more visibility of bi,” he said.

Jones-Hennin said he and his husband, who spend part of each year in their homes in Mexico and in D.C., now proudly identify as bi plus.

His reference to the term bi-plus or bi+ is part of the definition of bisexuality that bi rights advocates have been using to be inclusive of those who identify as pansexual as well as those who are both transgender and bisexual.

A. Billy Jones-Hennin

“Bi+ people may use many terms to describe their own sexual identities, including queer, pansexual, omnisexual, polysexual, and heteroflexible,” according to T.J. Jourian, Ph.D., and author of a January 2022 article on bisexuality for the publication Best Colleges.

In his article, Jourian quotes Massachusetts-based longtime bisexual rights advocate and author Robyn Ochs as providing her own interpretation of being bi.

“I call myself bisexual because I acknowledge that I have in myself the potential to be attracted – romantically and/or sexually – to people of more than one sex and/or gender, not necessarily at the same time, not necessarily in the same way, and not necessarily to the same degree,” Ochs says in a statement.

Bisexuals more likely to have mental health problems: study

Hutchins, meanwhile, points to a report released on June 13 by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA) that shows that adults who identify as lesbian, gay, and bisexual are more likely to have mental health problems than their straight counterparts. But the study also shows that people who identify as bisexual have a higher rate of mental health problems, including suicidal ideation, than gays and lesbians.

LaNail Plummer, a mental health therapist and licensed professional counselor who serves as CEO and clinical director of the D.C.-based Onyx Therapy Group, said she has seen from her therapy and counseling practice that the mental health issues faced by bisexual people are often the result of discrimination and negative treatment they receive from both the heterosexual community and from gays and lesbians.

Plummer, who herself identifies as bisexual, told the Blade in a phone interview that bisexuals often go through a coming out process that’s more complicated and involves less peer support than the coming out process for gay men and lesbians.

“There’s a lot of people who are bisexual in a world that seems to be centered around polarity,” Plummer said. “It is complicated for bisexual folks because bisexual folks can and will likely date people of the opposite sex at different times,” she said, requiring to some degree that they must “come out” in a same-sex relationship and later in an opposite-sex relationship.

Bisexual people face additional “stressors,” Plummer said, when they are in a relationship with a partner of the same sex because that partner sometimes manifests fear that their bi partner will leave them for someone of the opposite sex.

“I have a person I know who identifies as bisexual and she has a wife,” Plummer told the Blade. “And every time the person that I know goes out, the wife, who identifies as lesbian, gives her a really hard time, by asking are you going to be with a man today? What happens if a man comes up and talks to you? How are you going to respond to them?”

That type of dynamic, according to Plummer, often prompts bisexual people to go back into the closet and withhold their identity as bi to someone they are dating or in a relationship with who may be of the same sex or the opposite sex.

Plummer and bisexual rights advocates say this type of stress placed on bi people is usually based on misconceptions and bias against bisexuality that bi advocates say they hope will continue to decline with improved education and understanding of bisexuals.

Elder activists hopeful that bias is declining

Ochs told the Blade in an interview that she has been an activist in support of LGBTQ and bisexual equality for more than 40 years, with a focus on issues of concern to bisexuals.

“And I would say the first 30 of those years I felt we were beating our heads against a stone wall,” she said in describing efforts to advance bisexual rights. “It was so frustrating. I saw little progress. I felt like we were having the same conversations over and over and over,” she said.

“We continued to be ignored in all sorts of media, both mainstream media and LGBTQ media,” she recounted. “It would have been inconceivable up to about a decade ago for an out bisexual person to have ever been appointed as head of any national LGBTQ organization,” she said.

“So, that’s the background. The good part is that’s no longer true,” Ochs said. “There is much more cultural representation now with musicians, politicians and public figures coming out as bisexual and pansexual.”

She pointed to the two prominent national LGBTQ organizations that currently have top leaders who identify as bi+. The two are Kiera Johnson, executive director of the National LGBTQ Task Force, and Erin Uritus, CEO of the national LGBTQ group Out & Equal.

Another longtime bi advocate currently based in San Francisco, Lani Ka’ahumanu, is widely recognized as a leader in national social justice movements, including Native American, feminist, anti-war, and LGBTQ and bisexual rights movements. She is also an acclaimed author and poet whose writings appear in 20 books, including the book she co-edited with Loraine Hutchins, “Bi Any Other Name: Bisexual People Speak Out.”

Her online biography says Ka’ahumanu, like other bi activists, evolved from a suburban housewife in a heterosexual marriage with children in the 1960s and an amicable divorce with her husband before she came out as a lesbian.

“I was a lesbian for four years in the ‘70s,” she told the Blade in a phone interview. “And then I fell in love with a bisexual man and came out in 1980 as bi,” she said, adding that she continued, sometimes despite fellow activists who were skeptical about bisexuality, in her involvement in the feminist and LGBTQ rights movements.

Lani Ka’ahumanu and Loraine Hutchins circa 1992.

She became the first known out bisexual to serve on the board of directors of a national LGBTQ rights organization in 2000, when she was appointed to the board of the National LGBTQ Task Force, where she served until 2007.

Ka’ahumanu agrees with other bi rights advocates that things have improved in recent years for the bisexual community in the political and social landscape. But she said she was startled earlier this year when expressions of bias toward bisexuals surfaced, of all places, at the National LGBTQ Task Force’s annual Creating Change Conference held in San Francisco last February.

In her role as an elder and mentor to young bi activists, she said, she attended one of the conference’s bisexual workshops. “And hearing what some people said, it was the same stories from the ‘80s and 90s,” she recounted. “You know, you need to make up your mind. People were still being trashed for being bisexual within the lesbian and gay community,” said Ka’ahumanu.

“And that part kind of threw me,” she recounted. “I said, are we still in this place of being invisible?” she asked. “A lot of people still can’t step outside of that either or thing.”

Ka’ahumanu made it clear that most of the other sessions of the Creating Change Conference, which marked the beginning of the Task Force’s 50th anniversary, appeared supportive of the LGBTQ organization’s progressive and supportive views and policies on LGBTQ issues.

Shoshana Goldberg, Public Education and Research Director for the Human Rights Campaign, the nation’s largest LGBTQ political advocacy organization, said that like the LGBTQ community as a whole, recent developments have been “mixed” for bisexuals in the U.S.

“Bisexuals, particularly bisexual women of color, consistently earn less than the average American worker, and even less than their LGBTQ+ peers,” Goldberg said in a statement. “Many of the health disparities seen between LGBTQ+ and cis/het folks are magnified for bisexual people, and bisexuals continue to face biphobia from both straight and queer communities, and bi-erasure from all sectors of daily life,” Goldberg stated.

HRC official Rebecca Hershey, who works on diversity and inclusion issues, said HRC has been addressing issues of concern to the bisexual community through, among other things, its LGBTQ Coming Out Guides, which offer information to “dispel myths and address stereotypes about bisexuality.”

HRC also supports the annual Bisexual Health Awareness Month and in 2019 released its Bi+ youth report, which analyzed a survey HRC conducted of close to 9,000 teens to “help shed light” on the experiences of bi+ youth nationwide.

Bi rights advocates say the national LGBTQ organization GLAAD, which focuses on improving fairness in media and entertainment industry portrayals of LGBTQ people, has also acted as a strong advocate for bisexuals. In the 11th edition of its Media Reference Guide, GLAAD includes a detailed write-up on how the news and entertainment media should report on or portray bisexual people.

“By being more cognizant of the realities facing bisexual people and the community’s many diversities, and by fairly and accurately reporting on people who are bisexual, the media can help eliminate some of the misconceptions and damaging stereotypes bisexual people face on a daily basis,” GLAAD’s Media Reference Guide states.

Arnesen, the elder bisexual rights advocate who his bi colleagues refer to as an icon in the bi movement, sums up his sentiment as a bisexual advocate in his statement to the Blade.

“As a Bisexual human being, I am mindful that I stand upon the shoulders of the innumerable and courageous GLBT+ pioneers and advocates for ‘equality’ who came before me,” he wrote. “Fate just happened to put me in the right place, at the right time to advocate for ‘equality’ on behalf of my bisexual brothers and sisters; and our country’s GLBT and Heterosexual veterans of the U.S. Armed Forces,” he states.

“Today, the love of my life of 33 years is a heterosexual woman named Claudia, whom I love with all my heart and soul,” he says. “As a bisexual person I have been doubly blessed to know the love of both men and women during my life’s journey, and I cherish those memories within my heart.”

Additional information about bisexual rights issues and the state of the bi movement can be accessed through BiPlus Organizing US and its member organizations:

• BiPlus Organizing US
• Bisexual Resource Center, biresource.org
• Bisexual Organizing Project
• Los Angeles Bi+ Task Force, labitaskforce.org
• Bi Women Quarterly, BiWomenQuarterly.com

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Florida

DNC slams White House for slashing Fla. AIDS funding

State will have to cut medications for more than 16,000 people

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HIV infection, Florida, Hospitality State, gay Florida couples, gay news, Washington Blade

The Trump-Vance administration and congressional Republicans’ “Big Beautiful Bill” could strip more than 10,000 Floridians of life-saving HIV medication.

The Florida Department of Health announced there would be large cuts to the AIDS Drug Assistance Program in the Sunshine State. The program switched from covering those making up to 400 percent of the Federal Poverty Level, which was anyone making $62,600 or less, in 2025, to only covering those making up to 130 percent of the FPL, or $20,345 a year in 2026. 

Cuts to the AIDS Drug Assistance Program, which provides medication to low-income people living with HIV/AIDS, will prevent a dramatic $120 million funding shortfall as a result of the Big Beautiful Bill according to the Florida Department of Health. 

The International Association of Providers of AIDS Care and Florida Surgeon General Joseph Ladapo warned that the situation could easily become a “crisis” without changing the current funding setup.

“It is a serious issue,” Ladapo told the Tampa Bay Times. “It’s a really, really serious issue.”

The Florida Department of Health currently has a “UPDATES TO ADAP” warning on the state’s AIDS Drug Assistance Program webpage, recommending Floridians who once relied on tax credits and subsidies to pay for their costly HIV/AIDS medication to find other avenues to get the crucial medications — including through linking addresses of Florida Association of Community Health Centers and listing Florida Non-Profit HIV/AIDS Organizations rather than have the government pay for it. 

HIV disproportionately impacts low income people, people of color, and LGBTQ people

The Tampa Bay Times first published this story on Thursday, which began gaining attention in the Sunshine State, eventually leading the Democratic Party to, once again, condemn the Big Beautiful Bill pushed by congressional republicans.

“Cruelty is a feature and not a bug of the Trump administration. In the latest attack on the LGBTQ+ community, Donald Trump and Florida Republicans are ripping away life-saving HIV medication from over 10,000 Floridians because they refuse to extend enhanced ACA tax credits,” Democratic National Committee spokesperson Albert Fujii told the Washington Blade. “While Donald Trump and his allies continue to make clear that they don’t give a damn about millions of Americans and our community, Democrats will keep fighting to protect health care for LGBTQ+ Americans across the country.”

More than 4.7 million people in Florida receive health insurance through the federal marketplace, according to KKF, an independent source for health policy research and polling. That is the largest amount of people in any state to be receiving federal health care — despite it only being the third most populous state.

Florida also has one of the largest shares of people who use the AIDS Drug Assistance Program who are on the federal marketplace: about 31 percent as of 2023, according to the Tampa Bay Times.

“I can’t understand why there’s been no transparency,” David Poole also told the Times, who oversaw Florida’s AIDS program from 1993 to 2005. “There is something seriously wrong.”

The National Alliance of State and Territorial AIDS Directors estimates that more than 16,000 people will lose coverage

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U.S. Supreme Court

Competing rallies draw hundreds to Supreme Court

Activists, politicians gather during oral arguments over trans youth participation in sports

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Hundreds gather outside the U.S. Supreme Court on Tuesday. (Washington Blade photo by Michael Key)

Hundreds of supporters and opponents of trans rights gathered outside of the United States Supreme Court during oral arguments for Little v. Hecox and West Virginia v. B.P.J. on Tuesday. Two competing rallies were held next to each other, with politicians and opposing movement leaders at each.

“Trans rights are human rights!” proclaimed U.S. Sen. Ed Markey (D-Mass.) to the crowd of LGBTQ rights supporters. “I am here today because trans kids deserve more than to be debated on cable news. They deserve joy. They deserve support. They deserve to grow up knowing that their country has their back.”

U.S. Sen. Ed Markey (D-Mass.) speaks outside of the U.S. Supreme Court on Tuesday. (Washington Blade photo by Michael Key)

“And I am here today because we have been down this hateful road before,” Markey continued. “We have seen time and time again what happens when the courts are asked to uphold discrimination. History eventually corrects those mistakes, but only after the real harm is done to human beings.”

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U.S. Education Secretary Linda McMahon spoke at the other podium set up a few feet away surrounded by signs, “Two Sexes. One Truth.” and “Reality Matters. Biology Matters.”

“In just four years, the Biden administration reversed decades of progress,” said McMahon. “twisting the law to urge that sex is not defined by objective biological reality, but by subjective notion of gender identity. We’ve seen the consequences of the Biden administration’s advocacy of transgender agendas.”

From left, U.S. Education Secretary Linda McMahon and U.S. Rep. Mark Takano (D-Calif.) speak during the same time slot at competing rallies in front of the U.S. Supreme Court on Tuesday. Takano addresses McMahon directly in his speech. (Washington Blade photo by Michael Key)

U.S. Rep. Mark Takano (D-Calif.), chair of the Congressional Equality Caucus, was introduced on the opposing podium during McMahon’s remarks.

“This court, whose building that we stand before this morning, did something quite remarkable six years ago.” Takano said. “It did the humanely decent thing, and legally correct thing. In the Bostock decision, the Supreme Court said that trans employees exist. It said that trans employees matter. It said that Title VII of the Civil Rights Act protects employees from discrimination based on sex, and that discrimination based on sex includes discrimination based on gender identity and sexual orientation. It recognizes that trans people have workplace rights and that their livelihoods cannot be denied to them, because of who they are as trans people.”

“Today, we ask this court to be consistent,” Takano continued. “If trans employees exist, surely trans teenagers exist. If trans teenagers exist, surely trans children exist. If trans employees have a right not to be discriminated against in the workplace, trans kids have a right to a free and equal education in school.”

Takano then turned and pointed his finger toward McMahon.

“Did you hear that, Secretary McMahon?” Takano addressed McMahon. “Trans kids have a right to a free and equal education! Restore the Office of Civil Rights! Did you hear me Secretary McMahon? You will not speak louder or speak over me or over these people.”

Both politicians continued their remarks from opposing podiums.

“I end with a message to trans youth who need to know that there are adults who reject the political weaponization of hate and bigotry,” Takano said. “To you, I say: you matter. You are not alone. Discrimination has no place in our schools. It has no place in our laws, and it has no place in America.”

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U.S. Supreme Court

Supreme Court hears arguments in two critical cases on trans sports bans

Justices considered whether laws unconstitutional under Title IX.

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The United States Supreme Court on Tuesday, Jan. 13. (Washington Blade photo by Michael Key)

The Supreme Court heard two cases today that could change how the Equal Protection Clause and Title IX are enforced.

The cases, Little v. Hecox and West Virginia v. B.P.J., ask the court to determine whether state laws blocking transgender girls from participating on girls’ teams at publicly funded schools violates the 14th Amendment’s Equal Protection Clause and Title IX. Once decided, the rulings could reshape how laws addressing sex discrimination are interpreted nationwide.

Chief Justice John Roberts raised questions about whether Bostock v. Clayton County — the landmark case holding that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation or gender identity — applies in the context of athletics. He questioned whether transgender girls should be considered girls under the law, noting that they were assigned male at birth.

“I think the basic focus of the discussion up until now, which is, as I see it anyway, whether or not we should view your position as a challenge to the distinction between boys and girls on the basis of sex or whether or not you are perfectly comfortable with the distinction between boys and girls, you just want an exception to the biological definition of girls.”

“How we approach the situation of looking at it not as boys versus girls but whether or not there should be an exception with respect to the definition of girls,” Roberts added, suggesting the implications could extend beyond athletics. “That would — if we adopted that, that would have to apply across the board and not simply to the area of athletics.”

Justice Clarence Thomas echoed Roberts’ concerns, questioning how sex-based classifications function under Title IX and what would happen if Idaho’s ban were struck down.

“Does a — the justification for a classification as you have in Title IX, male/female sports, let’s take, for example, an individual male who is not a good athlete, say, a lousy tennis player, and does not make the women’s — and wants to try out for the women’s tennis team, and he said there is no way I’m better than the women’s tennis players. How is that different from what you’re being required to do here?”

Justice Samuel Alito addressed what many in the courtroom seemed reluctant to state directly: the legal definition of sex.

“Under Title IX, what does the term ‘sex’ mean?” Alito asked Principal Deputy Solicitor General Hashim Mooppan, who was arguing in support of Idaho’s law. Mooppan maintained that sex should be defined at birth.

“We think it’s properly interpreted pursuant to its ordinary traditional definition of biological sex and think probably given the time it was enacted, reproductive biology is probably the best way of understanding that,” Mooppan said.

Justice Sonia Sotomayor pushed back, questioning how that definition did not amount to sex discrimination against Lindsay Hecox under Idaho law. If Hecox’s sex is legally defined as male, Sotomayor argued, the exclusion still creates discrimination.

“It’s still an exception,” Sotomayor said. “It’s a subclass of people who are covered by the law and others are not.”

Justice Elena Kagan highlighted the broader implications of the cases, asking whether a ruling for the states would impose a single definition of sex on the 23 states that currently have different laws and standards. The parties acknowledged that scientific research does not yet offer a clear consensus on sex.

“I think the one thing we definitely want to have is complete findings. So that’s why we really were urging to have a full record developed before there were a final judgment of scientific uncertainty,” said Kathleen Harnett, Hecox’s legal representative. “Maybe on a later record, that would come out differently — but I don’t think that—”

Kathleen Harnett, center, speaks with reporters following oral arguments at the U.S. Supreme Court on Tuesday, Jan. 13. (Washington Blade photo by Michael Key)

“Just play it out a little bit, if there were scientific uncertainty,” Kagan responded.

Justice Brett Kavanaugh focused on the impact such policies could have on cisgender girls, arguing that allowing transgender girls to compete could undermine Title IX’s original purpose.

“For the individual girl who does not make the team or doesn’t get on the stand for the medal or doesn’t make all league, there’s a — there’s a harm there,” Kavanaugh said. “I think we can’t sweep that aside.”

Justice Amy Coney Barrett questioned whether Idaho’s law discriminated based on transgender status or sex.

“Since trans boys can play on boys’ teams, how would we say this discriminates on the basis of transgender status when its effect really only runs towards trans girls and not trans boys?”

Harnett responded, “I think that might be relevant to a, for example, animus point, right, that we’re not a complete exclusion of transgender people. There was an exclusion of transgender women.”

Justice Ketanji Brown Jackson challenged the notion that explicitly excluding transgender people was not discrimination.

“I guess I’m struggling to understand how you can say that this law doesn’t discriminate on the basis of transgender status. The law expressly aims to ensure that transgender women can’t play on women’s sports teams… it treats transgender women different than — than cis-women, doesn’t it?”

Idaho Solicitor General Alan Hurst urged the court to uphold his state’s ban, arguing that allowing participation based on gender identity — regardless of medical intervention — would deny opportunities to girls protected under federal law.

Hurst emphasized that biological “sex is what matters in sports,” not gender identity, citing scientific evidence that people assigned male at birth are predisposed to athletic advantages.

Joshua Block, representing B.P.J., was asked whether a ruling in their favor would redefine sex under federal law.

“I don’t think the purpose of Title IX is to have an accurate definition of sex,” Block said. “I think the purpose is to make sure sex isn’t being used to deny opportunities.”

Becky Pepper-Jackson, identified as plaintiff B.P.J., the 15-year-old also spoke out.

“I play for my school for the same reason other kids on my track team do — to make friends, have fun, and challenge myself through practice and teamwork,” said Pepper-Jackson. “And all I’ve ever wanted was the same opportunities as my peers. But in 2021, politicians in my state passed a law banning me — the only transgender student athlete in the entire state — from playing as who I really am. This is unfair to me and every transgender kid who just wants the freedom to be themselves.”

A demonstrator holds a ‘protect trans youth’ sign outside of the U.S. Supreme Court on Tuesday, Jan. 13. (Washington Blade photo by Michael Key)

Outside the court, advocates echoed those concerns as the justices deliberated.

“Becky simply wants to be with her teammates on the track and field team, to experience the camaraderie and many documented benefits of participating in team sports,” said Sasha Buchert, counsel and Nonbinary & Transgender Rights Project director at Lambda Legal. “It has been amply proven that participating in team sports equips youth with a myriad of skills — in leadership, teamwork, confidence, and health. On the other hand, denying a student the ability to participate is not only discriminatory but harmful to a student’s self-esteem, sending a message that they are not good enough and deserve to be excluded. That is the argument we made today and that we hope resonated with the justices of the Supreme Court.”

“This case is about the ability of transgender youth like Becky to participate in our schools and communities,” said Joshua Block, senior counsel for the ACLU’s LGBTQ & HIV Project. “School athletics are fundamentally educational programs, but West Virginia’s law completely excluded Becky from her school’s entire athletic program even when there is no connection to alleged concerns about fairness or safety. As the lower court recognized, forcing Becky to either give up sports or play on the boys’ team — in contradiction of who she is at school, at home, and across her life — is really no choice at all. We are glad to stand with her and her family to defend her rights, and the rights of every young person, to be included as a member of their school community, at the Supreme Court.”

The Supreme Court is expected to issue rulings in both cases by the end of June.

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