STILL WAITING:  The Supreme Court will soon be deciding a couple of cases involving whether a state can exclude “transgender women” from women’s sports teams. You won’t be shocked to know that I think they can.

I’ll be interested to see whether any of the Justices agree with Pete Kirsanow’s and my interpretation of Title IX (which focused on bathrooms, locker rooms and showers).  Dan Morenoff and Joe Bingham at the American Civil Rights Project later adapted our argument to the athletic context and submitted it to the Court in the pending cases as an amicus brief.  Our argument is different from the Trump Administration’s.  It starts from the assumption that Bostock was correctly decided and is designed to appeal to Justice Gorsuch’s approach to transgender questions.  (FWIW, regardless of whether Bostock was decided correctly, I believe ours is the correct interpretation of Title IX on this point. It’s basically a logic puzzle.)

Quite apart from my little argument, this is one of those cases I’m willing to get up early in the morning for if there’s a decent chance the decision will come down that day.  We’re getting late enough in the Court’s calendar that it will need to come down soon.  I’m going to start getting up at 5:30 am Pacific on “opinion days” so I can have coffee and be ready in case the decision is announced.