West Virginia v. B.P.J.

Facts of the Case

Provided by Oyez

B.P.J. is a transgender girl who has identified as female since the third grade. At the onset of puberty, B.P.J. began taking puberty blockers and estrogen for medical treatment of gender dysphoria, effectively halting male pubertal development and aligning her physical characteristics with those of cisgender girls. Since her social transition, B.P.J. has consistently lived as a girl at school and participated on girls’ athletic teams. In 2021, West Virginia enacted the “Save Women’s Sports Act,” which requires public school and collegiate sports teams to be designated based on “biological sex” and excludes individuals identified as male at birth from participating on female teams. This law, by its design and effect, prevented B.P.J. from continuing to compete on her school’s girls’ cross-country and track teams.

Shortly after the Act took effect, B.P.J., through her mother, sued the West Virginia State Board of Education and other state and county education officials, as well as the West Virginia Secondary School Activities Commission. She alleged that excluding her from girls’ sports violated the Equal Protection Clause and Title IX. The State of West Virginia intervened to defend the law. Initially, the district court granted B.P.J. a preliminary injunction, allowing her to participate on girls’ teams pending litigation. However, at summary judgment, the district court reversed course and upheld the law, concluding that the classification on the basis of “biological sex” was substantially related to the important government interest in ensuring fairness and opportunity in girls’ athletics. The court granted summary judgment to the defendants and denied B.P.J.’s cross-motion, holding that the exclusion of B.P.J. from girls’ sports did not violate the Constitution or Title IX. On appeal, the U.S. Court of Appeals for the Fourth Circuit reversed in part, vacated in part, and remanded. It held that application of the law to B.P.J. violated Title IX and that factual disputes precluded summary judgment against her equal protection claim.

Questions

Does Title IX or the Equal Protection Clause prohibit a state from assigning students to girls’ and boys’ sports teams based on their biological sex as determined at birth?

Conclusions

Decided together with Little v. Hecox (No. 24-38) 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.