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Rep. Nancy Mace, R-S.C., called out American Civil Liberties Union attorney Joshua Block for refusing to define sex after arguing against considering its definition during a Supreme Court hearing on trans athletes in women’s sports.
Block, who represents transgender athlete Becky Pepper-Jackson of West Virginia, urged the nine justices not to consider the definition of sex when ruling on Pepper-Jackson’s case, and said, “I don’t think the purpose of Title IX is to have an accurate definition of sex.
Block later conceded, “I think for this case, you can accept for the sake of this case that we’re talking about what they’ve termed to be biological sex.”
The attorney then refused to give his definition of sex after the hearing when asked by Fox News Digital, and fled further questioning.
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Joshua Block, senior counsel with the ACLU’s LGBTQ & HIV Projects and lead attorney representing Becky Pepper-Jackson, outside the US Supreme Court in Washington, D.C., US, on Tuesday, Jan. 13, 2026. (Kent Nishimura/Bloomberg via Getty Images)
Mace re-shared footage of Block dodging the question on X, condemning the ACLU for refusing to define ‘sex.’
“If the ACLU can’t even define what sex is, they have no credibility lecturing anyone about sex discrimination, which is the whole basis of their argument,” Mace wrote.
John Bursch, of Alliance Defending Freedom, the law firm representing female athletes and the state of West Virginia, said Block’s insistence on not defining sex was “completely bizarre.”
“That’s completely bizarre. I don’t know how you can decide a case interpreting sex under Title IX and under the equal protection clause by not defining sex,” Bursch told Fox News Digital after the hearing.
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“Sex, when Title IX was passed, meant biological sex, the entire statute was written with biological distinctions, it even refers to each of the sexes. I don’t know how the court can do that, and it says a lot that he felt and the ACLU felt they had to tell the court not to define sex in order for them to survive this case.”
Earlier in the hearing, Block minimized the impact of Pepper-Jackson’s presence on a girls’ cross-country team on other girls, arguing that cross-country is a sport that doesn’t have cuts. Justice Neal Gorsuch responded by bringing up that many sports do have cuts, and those sports are affected by the ruling in this case as well.
Block responded by arguing that plenty of female athletes don’t make the cut on their team due to being outperformed by other female athletes, and then admitted that if a female athlete is displaced by a trans athlete it is “unfortunate.”
“No one likes to lose, no one likes to not make the team. People often don’t make the team, cisgender girls don’t make the team when competing against other cisgender girls all the time, and I think the question I think is whether it’s an unfair advantage because a transgender girl participated,” Block said. “And if there is no sex-based biological distinction there, then I think it’s an unfortunate situation, but I think it’s the unfortunate situation that comes with having a zero-sum game, not with inherent unfairness.”
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At one point, Block argued, “There’s a group of people who are assigned male at birth, for who, being placed on the boy’s team is harmful,” when referring to trans athletes like Pepper-Jackson.
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