Supreme Court Allows State Bans on Transgender Students in Women’s and Girls’ Sports

Quick Hits

• The Supreme Court ruled that the Equal Protection Clause and Title IX allow states to designate school sports participation based on biological sex and that the laws do not unlawfully discriminate against transgender individuals.
• The Court found that Title IX does not require schools to make exceptions to biological sex-based sports to allow biological males who identify as female and who may have taken puberty-delaying medication or hormones.
• The Court found that the Equal Protection Clause permits biological sex-based distinctions in sports participation based on general physical differences between males and females.

Ruling in a pair of consolidated cases—West Virginia v. B..P.J. and Little v. Hecox—the Supreme Court upheld laws in Idaho and West Virginia that require designated female sports teams at public schools, colleges, and universities to be based on biological sex, thereby restricting transgender women and girls from participating on female-designated sports teams consistent with their gender identity.

The decision has significant implications for schools, colleges, universities, and other educational institutions.

Background

West Virginia v. B.P.J., No. 24-43, involved West Virginia’s “Save Women’s Sports Act,” enacted in 2021, which banned students who were biologically male at birth from participating in competitive or contact sports designated for female students in public secondary schools and colleges. A a transgender girl, who first started transitioning in third grade and began taking puberty-delaying medication and estrogen before puberty, challenged the law alleging that the categorical prohibition on transgender girls playing on girls’ sports teams violated Title IX and the Equal Protection Clause.

The Little v. Hecox case, No. 24-38, involved a transgender woman and Boise State University (BSU) student who was barred from trying out for BSU’s women’s track and cross-country teams based on Idaho’s “Fairness in Women’s Sports Act” (HB 500), which categorically banned transgender women and transgender girls from participating in women’s and girls’ sports at public schools at all levels, from elementary school through college. The student alleged the law, which was signed into law by Idaho Governor Brad Little in March 2020, violated the Equal Protection Clause.  

The Majority’s Decision

Writing the opinion of the Court, Justice Brett Kavanaugh concluded that Title IX allows schools to provide separate women’s and men’s teams as defined by biological sex. The Court held that separate teams for biological males and females are reasonable, given the inherent physical differences between the sexes. The Court also specifically noted that in recent years, twenty-seven states, the National Collegiate Athletic Association (NCAA), the U.S. Olympic and Paralympic Committee (USOPC), and the International Olympic Committee (IOC) have all drawn the same biological line.

The Court also rejected an argument that its prior ruling in Bostock v. Clayton County was relevant in this case, explaining that Title VII of the Civil Rights Act of 1964 concerns employment and generally requires that men and women be treated without regard to sex, whereas Title IX authorizes separate men’s and women’s sports teams. The Court concluded that “Title VII and Bostock are not relevant in this very different statutory and factual context.”

Justice Neil Gorsuch, who authored the Bostock opinion, stated in a concurring opinion that Bostock, “supports, not undermines, the Court’s conclusion” because both cases turned on biological sex. But Justice Gorsuch wrote, “It is a mistake to assume that, just because firing someone in part because of his biological sex amounts to unlawful discrimination in violation of Title VII, sponsoring a single-sex sports team limited to biological women or girls must also amount to unlawful discrimination in violation of Title IX.”

As to the constitutional challenge, the Court applied intermediate scrutiny, under which sex-based classifications are permissible only when substantially related to an important governmental objective. The Court agreed with the States that safety and competitive fairness are important interests and that limiting women’s and girls’ sports to biological females is substantially related to those interests. The majority held that States are not required to conduct an individual-by-individual comparison of athletes’ capabilities to satisfy intermediate scrutiny, reasoning that the validity of a classification depends on its relation to the overall problem rather than its application in any individual case. The Court emphasized the “enormous practical and administrability problem” that would arise if courts had to make individualized, athlete-by-athlete assessments.

The Dissent

Justice Sonia Sotomayor, joined by Justices Elena Kagan, and Ketanji Brown Jackson, concurred in part and dissented in part. The dissent agreed that the Title IX claims fail, though on a narrower basis than the majority relied. Justice Sotomayor noted that the majority concluded that “sex” means “biological sex” in the sports context, and instead argued that the Court should have proceeded as they did in Bostock “on the assump­tion that ‘sex’ in Title IX refer[s] only to biological distinctions be­tween male and female.” As to the constitutional argument, she maintained that the Court’s equal protection cases require courts to scrutinize whether a sex classification is overbroad as applied to a discrete, readily identifiable subclass.

Key Takeaways

For educational institutions that receive federal financial assistance, the ruling indicates that categorical bans on transgender students participating in women’s and girls’ sports do not violate Title IX. This interpretation of Title IX aligns with the current administration’s enforcement posture, which has sought to enforce a binary and immutable interpretation of biological sex that disregards individual gender identity. The ruling could have further implications under Title IX for educational institutions for sex-based restrictions and policies designed to protect opportunities for women and girls, potentially changing their compliance obligations.

Twenty-seven states have enacted laws restricting transgender participation in school sports: Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. Two other states—Alaska and Virginia—have bans in place through state regulations or agency policies.

Schools and universities in those states may need to reassess whether existing institutional policies need to be revised to conform to (or not exceed) what the Supreme Court permits.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Higher Education Practice Group, and Sports and Entertainment Industry Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Higher Education, Sports and Entertainment, Idaho, and West Virginia blogs as additional information becomes available.

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