West Virginia v. BPJ: Title IX, Equal Protection, and the Constitutional Status of Single-Sex Athletics

In a new decision of the United States Supreme Court, West Virginia v. B.P.J., the Court considered whether a state may limit athletic participation in female sports to “biological” girls and women. The Supreme Court found that states do not violate Title IX or the Equal Protection Clause of the U.S. Constitution by limiting athletic participation on teams for girls and women based on biological sex, defined as an individual’s reproductive biology and genetics at birth. Illinois law does not include such a restriction, so the holding of the decision is not directly applicable in Illinois. However, the Court’s reasoning may have significant implications when assessing future legal risks.

Background

The two cases considered together in West Virginia v. B.P.J. arose from challenges to state laws in West Virginia and Idaho restricting participation in female athletic teams.

West Virginia enacted the “Save Women’s Sports Act,” which requires that interscholastic and intercollegiate sports teams be designated as male, female, or coeducational, and limits participation on female teams to “biological females.” W. Va. Code Ann. § 18-2-25d (2022). The statute defines sex based on “reproductive biology and genetics at birth.” B.P.J., a transgender girl whose sex was identified as male at birth, sought to participate on her middle school’s girls’ cross-country and track teams. After school officials denied her eligibility under the Act, B.P.J. filed suit alleging violations of Title IX and the Equal Protection Clause. The district court decided in favor of enforcing the West Virginia law, which prohibited B.P.J’s participation in girls’ sports. On appeal, the Fourth Circuit disagreed and sided with B.P.J. allowing her participation. The Supreme Court granted certiorari.

In a parallel case, Idaho enacted the “Fairness in Women’s Sports Act” in 2020, similarly restricted participation on female teams, citing physical differences, including the effects of testosterone, as justification. Respondent Lindsay Hecox, a transgender woman, challenged the statute under the Equal Protection Clause. The district court issued an order allowing Hecox to participate in athletics while her lawsuit was pending, which the Ninth Circuit affirmed. The Supreme Court granted certiorari and consolidated the case with B.P.J.

Decision

Title IX

The Court held that Title IX permits schools to maintain sex-separated athletic teams defined according to biological sex as defined in the state statutes. Relying on statutory text, the 1974 Javits Amendment, and implementing regulations, the Court concluded that the term “sex” in Title IX refers to biological sex in the athletic context. The Court emphasized that the regulations explicitly authorize schools to maintain separate teams where selection is based on competitive skill or where the sport is a contact sport, reflecting longstanding concerns with safety and fairness. Notably, the Court rejected arguments that schools must provide exceptions for transgender girls, including those undergoing hormone treatment, noting no such requirement appears in the statutory or regulatory framework.

The Court also distinguished Bostock v. Clayton County, which held that Title VII’s prohibition on sex discrimination in the employment context also applies to prohibit discrimination against gay and transgender employees. The Court reasoned that because Bostock dealt specifically with employment discrimination, it does not control the distinct context of school athletics.

Equal Protection Clause of U.S. Constitution

The Court held that the challenged laws serve important governmental interests—namely, safety and competitive fairness—and are related to furthering those interests. The Court’s equal protection analysis rests on several propositions:

First, sex-based classifications in athletics are constitutionally permissible where they are tied to important interests in safety and competitive fairness in women’s and girls’ sports.

Second, states are not required to provide individualized assessments of each athlete’s abilities. It is permissible for a state to prohibit all biological males from participating in female sports, even if some males are not at a physical advantage to some females. More specifically, the Court did not require a factual determination on whether a biological male who has taken puberty blockers or hormones is at a physical advantage to biological females in the sport.

Third, the Court emphasized that legislatures and schools, not courts, are better positioned to evaluate evolving medical and scientific questions.

Finally, the Court characterized the challenged laws as classifying based on biological sex, not gender identity, and thus concluded that they satisfy constitutional review under a standard that is less exacting and gives more deference to state and local decision makers.

Impact of the Decision

While the ruling resolves one central question, whether states may restrict transgender girls and women from participating in girls’ and women’s sports, it simultaneously raises complex compliance questions and leaves key areas unsettled. In particular, the Court specifically noted that its ruling does not address whether Title IX or the Equal Protection Clause prohibit states or schools from allowing transgender girls and women to participate in female sports, noting those issues are being litigated in other cases.

However, the Court’s reasoning suggests legal risk beyond the issues decided in this case. The Court states that [a]llowing a biological male athlete to compete on a girls’ team necessarily displaces or disadvantages a female athlete—replacing her on the roster, knocking her out of the starting lineup, reducing her playing time, depriving her of a medal, and the like.” The Court further credits that “allowing biological males to play on women’s and girl’s sports teams can put women and girls at significant risk of injuries.” We anticipate further litigation with risk to education institutions given this precedent.

We will continue to support clients as the full implications of this decision unfold. If you have any questions about the impact of this decision on your school district, call your Franczek attorney.