In a decision issued on the last day of its current term, the Supreme Court upheld state laws in Idaho and West Virginia banning transgender women and girls from participating on women’s and girls’ sports teams. While the Court unanimously concluded that the state bans did not violate Title IX, there was a 6-3 split with respect to whether the bans violated the Equal Protection clause of the Fourteenth Amendment. The Court further held that “sex” under Title IX refers to biological sex. The decision leaves unresolved whether educational institutions in states that permit transgender participation may face Title IX challenges arising from inclusion policies, and educational institutions will need to continue to follow this issue closely.

In the first of two consolidated cases, West Viriginia v. BPJ, the Court addressed BPJ’s claims under Title IX of the Education Amendments of 1972. BPJ, an eighth grader living in West Virginia, challenged a law enacted in 2021 to bar transgender women and girls from participating on women’s and girls’ sports teams in public secondary schools and colleges. BPJ has publicly identified as a girl since third grade, received puberty blockers, and is undergoing gender-affirming hormone therapy. However, under the law, BPJ’s reproductive biology and genetics at birth prevented participation on the girls’ track and cross country team at school. In January 2023, the district court judge who originally issued an order temporarily barring West Virginia from enforcing its law ruled in the state’s favor on cross-motions for summary judgment. However, the Fourth Circuit overturned this ruling, holding that the law violated Title IX because it constituted discrimination on the basis of sex. The circuit court not only found that the district court erred in granting summary judgment to defendants, the court also remanded the matter with instructions to grant summary judgment in favor of BPJ as to her Title IX claim.

Yesterday, the Court unanimously held that state law bans do not violate Title IX. The implementing regulations for Title IX “expressly permit schools to maintain separate teams for ‘members of each sex.’” The six justices in the majority agree that the word “sex” cannot be “plausibly interpreted to refer to anything other than biological sex.” In concurrence, Justice Sotomayor, joined by Justices Kagan and Jackson, also found that the Title IX claims fail, but “under a narrower basis than that on which the majority relies.” No matter how narrowly construed, this decision significantly affects Title IX compliance obligations for schools, the viability of state athletic participation laws, and litigation exposure for institutions receiving federal funds. Courts will inevitably have to address whether it is a violation of Title IX to allow transgender women to participate in women’s sports teams in states that do not bar such participation. 

The BPJ decision further leaves open the definition of “sex” under other federal statutes. Six years ago, in Bostock v. Clayton County, the Court construed the prohibition of sex discrimination in Title VII of the Civil Rights Act to forbid firing an employee “for being gay or transgender.” We will have to await future cases to see whether different definitions of “sex” under different laws will require employers to revisit questions related to bathrooms, locker rooms, or other facilities.

Next, the Court addressed the constitutionality of laws adopted in 27 states to prohibit transgender women and girls from participating on women’s and girls’ sports teams. A challenge to these laws was brought in both BPJ and the companion case of Little v. Hecox under the Equal Protection Clause of the Fourteenth Amendment. 

Little v. Hecox arose out of a challenge to the Fairness in Women’s Sports Act passed by Idaho in 2020. This law was the first of its kind in the United States, imposing a flat ban on the participation of transgender women and girls on women’s and girls’ sports teams in public schools at all levels, from elementary school through college. Under the law, Lindsay Hecox was rendered ineligible to try out for the women’s track and cross country teams at Boise State University by having been assigned a male sex at birth. In August 2020, a federal district court in Idaho temporarily barred the state from enforcing the law, concluding that the law likely violated the Fourteenth Amendment’s equal protection clause as a form of sex discrimination. On appeal, the Ninth Circuit found that the law was in violation of the Fourteenth Amendment based on its categorical ban that corresponded with women’s and girls’ gender identity. Further, the circuit court held that the law discriminated on the basis of sex where only the athletes on girls’ and women’s teams would be subject to invasive sex verification procedures. It is important to note that Hecox decided not to play sports in Idaho any longer and sought to dismiss all claims and requested that the justices dismiss the case as moot. Hecox’s lawyers asked that the justices dispose of the Ninth Circuit’s favorable decision and send the case to the lower court for dismissal. However, Idaho urged the justices to go forward with the case, arguing that the Court has an “interest in preventing litigants from attempting to manipulate the Court’s jurisdiction.”

Six justices found the Idaho and West Virginia laws constitutional, explaining their holding as “straightforward.” The majority reasoned that sex-based classifications are permitted under an intermediate scrutiny test so long as they are “not invidious, but rather realistically reflect[] the fact that the sexes are not similarly situated in certain circumstances”—for the majority, the sports context presented one of these exact circumstances. The Court found the sex-based classifications at issue appropriate “[g]iven the inherent physical differences between the sexes.” Because of these differences, “allowing only biological females to play on women’s and girls’ teams can reduce the risk of physical injury and ensure fair competition,” two important government interests for the purpose of intermediate scrutiny. The dissent argued that additional facts were needed to properly decide the constitutional question because the equal protection analysis “has generally considered whether the classification fits discrete subclasses and the extent to which subclasses are burdened.” From a constitutional standpoint, engaging with the scientific evidence might be required in any number of contexts outside the athletic context, ranging from prison administration to new drug applications, to determine whether distinctions based on transgender status can pass an intermediate scrutiny test. 

Despite its significance, the Court's decision is carefully bounded. The opinions repeatedly emphasize that the Court resolved a dispute concerning athletic competition—not the full range of legal questions involving transgender status, sex-based classifications, and federal civil-rights protections. For example, the case did not decide whether trans-inclusive state laws permitting sports participation in alignment with gender identity violate Title IX. Nor did the decision require states to enact bans. In states without bans, schools will still need to evaluate transgender women’s participation in women’s sports in light of state law, NCAA, or other applicable participation rules, and institutional values. It will be important to follow the Court’s trajectory, as it molds the future of institutional compliance as it pertains well beyond the realm of school sports.

Cozen O’Connor has prepared a white paper that goes into greater depth on the issues raised in these cases. To request a copy of our white paper discussing the Court's decision and its implications for educational institutions, please email Catherine Crochunis-Brown at CCrochunisBrown@cozen.com or click here.