Facts of the Case
In 2020, Idaho enacted the Fairness in Women’s Sports Act, which categorically barred transgender girls and women from participating on female athletic teams in public schools—from elementary school through college. Prior to the law’s passage, Idaho’s high school athletic association and the NCAA allowed transgender women to compete on women’s teams after a year of hormone therapy. At the time, there were no known instances of transgender girls competing in Idaho athletics under those existing rules. Nonetheless, Idaho lawmakers passed the Act, citing concerns about “fairness” and biological differences attributed to testosterone and other factors. The law allowed any individual to challenge a female athlete’s gender, triggering a mandatory medical verification process that could include analysis of reproductive anatomy, genetic make-up, or testosterone levels. Cisgender women, including those perceived as more masculine, could also be subjected to these checks.
Lindsay Hecox, a transgender woman and student at Boise State University who wished to join the women’s cross-country team, filed suit alongside a cisgender high school athlete known as Jane Doe. They alleged that the Act violated their constitutional rights, including the Equal Protection Clause of the Fourteenth Amendment. Hecox had undergone hormone therapy, significantly lowering her testosterone levels, but was still categorically excluded under the law. The district court granted a preliminary injunction blocking the law in August 2020, finding it likely unconstitutional. After several rounds of appeal and remand, the U.S. Court of Appeals for the Ninth Circuit ultimately affirmed the injunction as applied to Hecox but remanded the case to the district court to reconsider the scope of the injunction, especially in light of the Supreme Court’s 2024 decision in Labrador v. Poe.
Questions
May a state, consistent with the Equal Protection Clause of the Fourteenth Amendment, categorically require sports participants to compete based on their biological sex, rather than gender identity?
Conclusions
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Decided together with West Virginia v. B. P. J. (No. 24-43) in a single opinion. Schools may limit women’s and girls’ sports teams to biological females under both Title IX and the Equal Protection Clause of the Fourteenth Amendment, and states may determine eligibility for female sports based on biological sex alone. Justice Brett Kavanaugh authored the 6-3 majority opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.
Title IX — the 1972 law prohibiting sex discrimination in federally funded education programs — uses “sex” to mean biological sex, as that term was commonly understood when Congress enacted the law in the early 1970s. The statute’s implementing regulations, issued in 1975, expressly permit schools to maintain “separate teams for members of each sex” to account for the inherent physical differences between biological males and females. A 1974 amendment to Title IX directed those regulations to include “reasonable provisions considering the nature of particular sports,” and separate sex-based teams satisfy that reasonableness requirement precisely because biological males generally hold physical advantages in height, weight, strength, speed, and endurance. Nothing in Title IX’s text, the 1974 amendment, or its implementing regulations requires schools to create exceptions allowing biological males who identify as female — including those who take puberty blockers or hormones — to compete on women’s teams. The workplace discrimination rule from Bostock v. Clayton County (2020), which interpreted Title VII’s employment protections, does not apply in the distinct context of sex-separated sports authorized by Title IX.
Under the Equal Protection Clause, laws that classify by sex must satisfy “intermediate scrutiny” — meaning the classification must be “substantially related” to an “important” government interest. Safety and competitive fairness qualify as important interests, and limiting women’s sports to biological females substantially relates to both. States need not conduct individual, athlete-by-athlete assessments of every biological male’s physical capabilities, because a law’s validity “depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government’s interests in an individual case.” The challenged laws classify on biological sex, not transgender status, and they survive constitutional review even against the argument that some transgender athletes who take hormones retain no physical advantage — a proposition that remains scientifically contested and on which legislatures, not courts, are better positioned to act.
Justice Thomas concurred, arguing that transgender status is not a “suspect class” (a legal category commanding heightened judicial protection), and that laws affecting transgender people should receive only the most deferential form of constitutional review — rational basis — rather than intermediate scrutiny.
Justice Gorsuch concurred, arguing that Title IX, as a Spending Clause statute (legislation that conditions federal funding on certain behavior), does not clearly and unambiguously prohibit schools from sponsoring single-sex sports teams, and that Bostock supports rather than undermines today’s result because the two statutes address different contexts.
Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, concurred in the Title IX ruling but dissented on equal protection, arguing that the majority improperly resolved a contested factual dispute about whether transgender girls who have never experienced male puberty and who receive gender-affirming treatment retain any athletic advantage — a dispute the lower courts should have resolved first — and that the majority’s approach weakens the protection intermediate scrutiny provides against overbroad sex-based classifications.
Justice Jackson separately concurred in part and dissented in part, joining Justice Sotomayor’s full opinion and writing additionally to argue that the majority wrongly declared “sex” in Title IX to mean only biological sex, a conclusion the Court did not need to reach and should have left open, given that Title IX’s broader protections may extend to gender identity and sex stereotyping.
From the Courthouse Steps: Little v. Hecox and West Virginia v. B.P.J.
In the consolidated cases Little v. Hecox and West Virginia v. B.P.J., the Supreme Court...
From the Courthouse Steps: Little v. Hecox and West Virginia v. B.P.J.
In the consolidated cases Little v. Hecox and West Virginia v. B.P.J., the Supreme Court...
