Why It Matters
The Supreme Court issued its decision in West Virginia v. B.P.J. on June 30, upholding West Virginia and Idaho laws restricting transgender girls' eligibility to participate in female athletics competitions. A recent CRS Legal Sidebar analyzed the ruling's legal and policy implications. For Congress, the ruling clarifies that Title IX does not require schools to allow transgender athletes to compete consistent with their gender identity, but it leaves open a separate constitutional question that lawmakers may eventually need to address.
The Big Picture
The consolidated cases challenged West Virginia and Idaho laws requiring student-athletes to compete according to their sex assigned at birth. Justice Kavanaugh authored the majority opinion, joined by Chief Justice Roberts and Justices Alito, Barrett, Gorsuch, and Thomas.
On the Title IX question, all nine justices agreed that the ordinary meaning of 'sex' at the time Congress enacted Title IX referred to biological sex, not gender identity. The court held that regulations allowing sex-separated teams are reasonable given inherent physical differences between the sexes and that allowing a biological male athlete to compete on a girls' team necessarily displaces or disadvantages a female athlete.
The Equal Protection Clause challenge split 6-3, with Justices Sotomayor, Kagan, and Jackson dissenting. The Court applied intermediate scrutiny and held that states have an important interest in "safety and competitive fairness" and that limiting girls' sports to biological females was substantially related to that interest.
Justice Thomas emphasized that transgender status is not a suspect class requiring heightened scrutiny. Justice Gorsuch stressed the Spending Clause 'clear notice' requirement, arguing states had no clear indication that separating sports by biological sex would violate Title IX. The court rejected an 'as-applied' challenge from plaintiffs who took puberty blockers and hormones.
The Bottom Line
The decision resolves a circuit split and settles years of legal uncertainty about the permissibility of state laws restricting transgender athletes in women's and girls' sports, but does not resolve whether states may permit transgender athletes to compete consistent with their gender identity. The court also left unresolved the question of what level of scrutiny applies to laws that explicitly classify on gender identity itself, rather than biological sex.
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