Key Takeaways
- The Supreme Court ruled that state law may restrict participation in girls’ and women’s sports to biological females. Two biological males who are transgender and identify as female did not succeed in challenging Idaho and West Virginia laws barring biological male participation on women’s and girls’ sports teams.
- The equal protection argument divided the Court. All nine justices agreed that the West Virginia litigant’s claim challenging that state’s law pursuant to Title IX of the Education Amendments of 1972 failed, but they were divided 6-3 on whether the Idaho and West Virginia statutes violate the equal protection clause of the 14th Amendment.
- The holding is permissive, not mandatory. Despite ruling that states can enact such laws, the Court explicitly stated it was not deciding whether schools may allow biological males who identify as female to participate on girls’ and women’s sports teams, purposely leaving the question open for litigation in the lower courts.
On June 30, the U.S. Supreme Court answered a question that had divided courts and legislatures nationwide: May states restrict participation in women’s and girls’ sports to biological females? The Court answered yes in West Virginia v. B.P.J., 609 U.S. ___ (2026) (consolidated with Little v. Hecox, 599 U.S. ___ (2026)). At the time of the decision, 27 states had enacted laws limiting participation on female athletic teams to biological females. Similar policies had been adopted by the International Olympic Committee, the U.S. Olympic & Paralympic Committee, and the National Collegiate Athletic Association. This case involved two transgender athletes challenging laws in their respective states.
- In West Virginia, a transgender teenage athlete identified as B.P.J. challenged the state’s Save Women’s Sports Act, arguing that the law violates both Title IX and the equal protection clause. The U.S. District Court for the Southern District of West Virginia granted summary judgment to the state on both claims. Subsequently, the Fourth Circuit of Appeals reversed the grant of summary judgment on the Title IX claim and remanded the equal protection claim for further fact-finding.
- Across the country, in Idaho, transgender college student Lindsay Hecox challenged the state’s Fairness in Women’s Sports Act, claiming it violates the equal protection clause.[1] Unlike B.P.J., Hecox did not bring a Title IX claim. The U.S. District Court for the District of Idaho granted a preliminary injunction blocking enforcement of the act, and the Ninth Circuit affirmed the injunction.
The Supreme Court took up the matter and, in a 6-3 decision authored by Justice Brett Kavanaugh and joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett, held that (1) West Virginia had permissibly maintained female sports for biological females consistent with Title IX and (2) the laws in West Virginia and Idaho do not violate the equal protection clause. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson concurred with the majority regarding Title IX; however, they dissented with respect to the equal protection clause.
The Title IX Argument: Women’s Sports Teams May Be Limited to Biological Females
Title IX prohibits sex discrimination in any education program or activity receiving federal financial assistance. The Javits Amendment, added to the Education Amendments in 1974, directs federal agencies to establish “reasonable provisions considering the nature of particular sports” when enforcing Title IX.
Relying on the foregoing, B.P.J. argued that schools must allow biological males who identify as female and have taken puberty blockers or hormones to compete on girls’ sports teams because those treatments allegedly mitigate the physical advantages associated with male biology.
The Court disagreed, pointing to the Javits Amendment’s requirement of “reasonable provisions” in explaining that neither Title IX, the Javits Amendment nor the implementing regulations require schools to create an exception for biological males who have taken puberty blockers or hormones. As a result, the Court unanimously held that Title IX permits states to limit women’s and girls’ sports teams to biological females and that B.P.J.’s Title IX claim failed.
The Equal Protection Argument: Safety, Fairness and Equal Protection
The equal protection clause guarantees that “[n]o State shall deny to any person within its jurisdiction the equal protection of the laws.” Both B.P.J. and Hecox argued that their respective states violated that clause by limiting women’s and girls’ sports teams to biological females. The Court’s majority disagreed. Applying its established equal protection jurisprudence, the Court explained that laws classifying activities on the basis of sex are subject to intermediate scrutiny, which requires that the classification be substantially related to an important governmental objective.
The Court identified two important governmental objectives underlying the West Virginia and Idaho laws: athlete safety and competitive fairness. According to the Court, biological males generally possess physical advantages in areas such as strength, speed, endurance and size. As a result, limiting women’s and girls’ sports to biological females reduces the risk of injury. The Court also emphasized competitive fairness given that athletics are often zero-sum endeavors, meaning roster spots, playing time, titles and scholarships earned by one athlete are unavailable to another.
The Court next addressed B.P.J.’s and Hecox’s claims that biological males who take puberty blockers and hormones may not retain the athletic advantages associated with male biology. The Court noted that the extent to which such medications mitigate athletic advantages remains the subject of ongoing scientific debate. Even if their premise were correct, the West Virginia and Idaho laws would still survive intermediate scrutiny, the Court held, because the sex-based classification remained substantially related to the states’ interests in athletic safety and competitive fairness. Last, the majority rejected requiring assessments on an individual basis, reasoning that the equal protection clause does not require states to conduct athlete-by-athlete assessments and that legislatures may draw general classifications based on sex.
Justices Gorsuch and Thomas both joined in the majority opinion and wrote separate concurrences. Justice Gorsuch first observed that because Title IX is spending clause legislation, funding recipients must receive clear notice of any conditions attached to federal funds. In his view, nothing in Title IX clearly and unambiguously informs recipients that they may not sponsor sports teams limited to biological girls and women. Second, Justice Gorsuch distinguished Bostock v. Clayton County, 590 U.S. 644 (2020) – in which the Court held that Title VII of the Civil Rights Act of 1964 protected employees from discrimination on the basis of sexual orientation and gender identity – explaining that although Bostock addressed discrimination that occurs “because of sex,” it is not dispositive as to whether sex-separated athletic teams constitute unlawful discrimination. Because Title IX expressly contemplates sex-separated sports teams, he concluded that limiting girls’ and women’s teams to biological females does not violate Title IX.
Justice Thomas likewise organized his concurrence around two points. First, he argued that transgender status is not a suspect class entitled to heightened equal protection scrutiny, because it is associated with gender dysphoria, which he characterized as a mutable mental state rather than an immutable characteristic. Second, he argued that men and boys with gender dysphoria are not girls or women, even if they identify as such, because sex is an immutable biological characteristic.
The Dissent’s Push for Further Fact-Finding
Justice Sotomayor, joined by Justices Kagan and Jackson, while concurring on the Title IX claim, dissented from the Court’s equal protection holding. They argued that B.P.J. presented evidence that transgender girls who never experienced male puberty and who receive puberty blockers and hormones may not possess the athletic advantages that the states attribute to biological males generally. If that is true, the states’ asserted interests in athlete safety and competitive fairness may not justify excluding that subclass of athletes. Accordingly, the dissent contended that additional fact-finding was necessary and that the majority prematurely concluded that laws restricting participation in women’s and girls’ sports to biological females were constitutional under the equal protection clause.
Justice Jackson wrote separately to address B.P.J.’s Title IX claim. She noted that B.P.J. did not argue that “sex” in Title IX means anything other than biological sex, and that the majority relied on that concession for purposes of this case while further concluding that “sex” cannot plausibly mean anything other than biological sex. Justice Jackson disagreed with that broad conclusion, arguing that the Court did not need to resolve the scope of Title IX’s definition of “sex” to decide this case. In her view, there is reason to question whether Title IX’s prohibition on sex discrimination is limited solely to sex assigned at birth, and the majority erred by effectively foreclosing that question.
The Unresolved Questions
While the Supreme Court’s decision effectively provides a stamp of approval for the laws enacted by 27 states barring biological males from participating in women’s and girls’ sports, the holding is permissive rather than mandatory. The Court specifically stated that the cases here “do not present the distinct question of whether, under Title IX and the Equal Protection Clause, schools may allow biological males who identify as female to participate on women’s and girls’ sports teams” (emphasis in original). The Court further noted that this issue remains the subject of ongoing litigation in lower courts and that its opinion was not intended to resolve that question.
Therefore, the unresolved question is whether states that choose not to enact such laws may continue to permit transgender athletes to compete without violating Title IX or the equal protection clause. In other words, can biological female athletes in those states bring successful claims alleging that their rights are not being adequately protected? The opinion is also carefully confined to the school-sports context. The ruling does not address other contentious issues, such as access to bathrooms or locker rooms, nor does it directly address policies adopted by private athletic organizations.
Looking ahead, the decision will likely generate additional litigation in the lower courts. While states now have Supreme Court confirmation that they may limit participation in women’s and girls’ sports to biological females, the Court left unresolved whether states may permit participation by transgender females. Accordingly, future litigation will likely focus on the boundaries of Title IX and the equal protection clause and on whether the reasoning of West Virginia v. B.P.J. extends to other contexts involving transgender rights.
For additional information about this article, please contact Patrick M. Muldowney at pmuldowney@bakerlaw.com. Patrick is a partner in BakerHostetler’s Sports Industry Group and counsels employers on labor relations, employment litigation, compliance, and workplace risk management.
Summer Clerk Theodore R. Fronczak co-authored this alert.
[1] After the Court granted certiorari, Hecox filed a suggestion of mootness stating that she would cease participating in any women’s sports covered by Idaho’s law. The majority nonetheless concluded that Hecox’s claim was not moot because she remained enrolled at her college and had changed her position only after the Court granted review. As a result, the majority addressed the merits of both Hecox’s and B.P.J.’s claims. The dissent disagreed, concluding that Hecox’s claim was moot, and limited their analysis to B.P.J.’s claims.
