Supreme Court Allows States to Protect Girls’ Sports from Male Athletes

T he Supreme Court this morning ruled that neither the 14th Amendment nor Title IX requires states to let boys into girls’ sports even if the male athletes identify as female. The issue came to the Court in two cases: West Virginia v. B.P.J. challenged West Virginia’s ban on boys in girls’ sports under both Title IX of the Education Amendments of 1972 and the equal protection clause of the 14th Amendment, while Little v. Hecox challenged Idaho’s ban only under the 14th Amendment.

The decision was technically unanimous in part (more on that below), but effectively 6–3, at least on the constitutional issue. The opinion by Justice Brett Kavanaugh emphasized that, if female athletes do not have their own, separate sports teams and leagues, this “would deny equal opportunity to female athletes because, as all agree, females and males have inherent physical differences relevant to athletic performance.” The Court refused to pretend away that reality, ruling that schools may “determine eligibility for women’s and girls’ sports based on biological sex.” Of course, that entails concluding that biological sex is a real thing that is unchangeable — exactly what transgender ideology denies.

Levels of Scrutiny

This was the Court’s second time dealing directly with the claims of transgender ideology. Because that ideology denies the immutable reality of sex differences, it collides with half a century of precedent under which the Court has developed the framework of intermediate scrutiny. The whole point of intermediate scrutiny, first applied by the Court in Craig v. Boren (1976), is that the Court asks whether sex discrimination can be justified by real differences between the sexes, as opposed to, say, stereotypes about how women think or socialize. To accept the claims of transgenderism would undermine the entire foundation of intermediate scrutiny.

In Skrmetti v. United States, which challenged bans on puberty blockers and other similar treatments for gender-transitioning minors, the Court refused to accept the premises of transgender ideology, but due to the ACLU’s tortured legal theory in the case (which tried and failed to compare the use of the same hormones in different medical treatments), neither did the Court need to squarely rule against it.

At the time, Justices Amy Coney Barrett, Samuel Alito, and Clarence Thomas would all have gone further to agree with the Sixth Circuit that transgenderism is not a suspect classification at all, and therefore all laws dealing with transgender issues need pass only the lenient rational-basis test. Today’s decision did not address the suspect class issue, although Thomas noted in a concurring opinion that he stands by his view on that. Thomas was characteristically blunt today: “A man does not have a legal right to compete against women just because he believes that he is a woman.”

Sports Don’t Lie

The question of men in women’s sports puts the big-ticket questions of biological reality closer to the surface than in Skrmetti, and close to the heart of Kavanaugh, who has long coached girls’ basketball. “Few laws have been as effective and consequential in day-to-day American life as Title IX,” he observed, and his opinion closed with an ode to how much female athletes put into their sports. More practically, as he noted, bans on biological males in female sports now exist in 27 states, and have been adopted as well by “the International Olympic Committee, the United States Olympic and Paralympic Committee, and the NCAA.”

B. P. J. argued that he (or “she,” as the dissenters would have it) hasn’t gone through puberty yet. The trouble with using teenagers for test cases is that they keep maturing: as Kavanaugh noted, citing a late letter from West Virginia, “During the ongoing litigation, B. P. J. competed on the teams. Recently, B. P. J. won the West Virginia Class AAA high school state championship in girls’ shot put and finished fourth in girls’ discus. B. P. J. won the Region 2 championship in both events.” The girls who lost out can’t get that experience back.

The Title IX statutory argument required the challengers to deny not only biology but also the entire point of the law:

Title IX regulations allowed separate sports teams precisely because of the biological difference s between the sexes — namely, the inherent physical differences between biological women and biological men. For example, the regulations authorized separate women’s and girls’ teams in sports when the teams are “based upon competitive skill or the activity involved is a contact sport.” . . .

By referring to contact sports and competitive skill, the regulations plainly recognized the inherent physical differences between biological men and biological women — as well as the safety and competitive fairness concerns that would arise if males were allowed to compete in female sports. . . . Notably, B. P. J. does not seriously contest that the term “sex” in Title IX, the [1974] Javits Amendment, and the regulations means biological sex. Moreover, B. P. J. agrees with West Virginia and the United States as amicus curiae that Title IX permits schools to maintain separate female and male teams and to prohibit most biological males from playing on women’s and girls’ teams. [Citation omitted.]

As in Skrmetti, this argument was an attempt to get clever in order to get around the obvious. The Court was not so easily fooled by appeals to the effects of puberty blockers and hormones, and was hesitant to rewrite the law based on appeals to supposed “science” that remains hotly contested:

Separate sports teams for biological males and biological females are reasonable: Given the inherent physical differences between the sexes, allowing only biological females to play on women’s and girls’ teams can reduce the risk of physical injury and ensure fair competition. True, some might prefer a different rule allowing biological males who identify as female to participate on women’s and girls’ sports teams, at least in certain circumstances. But it was surely “reasonable” for HEW in 1975 to draw a biological line — a line where biological males play only on male sports teams and only biological females play on female sports teams. Even in recent years, 27 States, the NCAA, the USOPC, and the IOC have all drawn the same line. . . .

The safety risks are at their apex in contact sports, such as soccer, basketball, field hockey, lacrosse, and ice hockey, among others. (Anyone who thinks that those women’s and girls’ sports, and other sports like them, are not contact sports has not witnessed a game recently.) And safety concerns also exist in ostensibly non-contact sports, such as volleyball, where spiked balls can cause serious injuries, and softball, where line drives can similarly cause significant harm.

Nor was the Court prepared to constitutionalize the puberty blockers line as a substitute for biological sex in the 14th Amendment:

Particularly in the sports context, determining the effects of the puberty blockers and hormones taken by transgender athletes — and then comparing each of those transgender athletes’ abilities to those of other individual biological males and individual biological females in the relevant sport — would be an almost impossible task for a judge to perform on an equitable basis. The legislatures and the schools are better equipped — and under the Constitution, are the more appropriate entities — to assess the competing medical and scientific considerations and draw appropriate lines. . . . The Judiciary is not the proper institution to make what would often be arbitrary and highly intrusive athlete-by-athlete assessments. . . .

In the sports context, starting down the road of judicially managed individualized exemptions based on physical capabilities of individual athletes could fundamentally undermine women’s and girls’ sports. . . . The questions would be endless (and bitter) and yield few, if any, principled answers. The Equal Protection Clause and this Court’s precedents do not require such a judicial quagmire. . . .

The plaintiffs’ premise is the subject of ongoing medical and scientific debate and is not settled in their direction at this time. States and leading athletic organizations disagree. . . . In assessing state and federal laws passed under circumstances of medical and scientific uncertainty, this Court has often said that the Judiciary must be cautious about swooping in and invalidating laws. . . . Especially on medical and scientific matters where there is serious debate and disagreement, it can be difficult for courts to meaningfully evaluate the considered policy judgments of the lawmakers who have scrutinized the medical evidence and scientific data before them, and have made a reasoned decision.

Notice here the importance of institutional capture by the left: Because the NCAA, the IOC, and the scientific establishment have not been kept entirely in ideological lockstep with the left, the Court can see that a real debate exists from which elementary reality has not been exiled.

Moreover, it is reasonable for states to maintain easily defined lines even when those lines operate at a general level not tailored to each individual athlete:

Everyone also agrees that States, in preserving separate sports teams for female athletes, need not account for the individual physical capabilities of (and differences among) every biological male who might want to play on a women’s or girls’ team. To spell that out: Not every biological male athlete is bigger, stronger, faster, or otherwise more athletically able than every biological female athlete. Some percentage of biological males who identify as male possess physical and athletic capabilities that fall within (or below) the range of typical female physical and athletic capabilities. But the plaintiffs acknowledge that States may still exclude those biological males from women’s and girls’ sports, given the general physical differences between males and females. . . . Individuals come in all shapes and sizes, with different height, weight, muscle mass, heart capacity, lung capacity, strength, speed, endurance, jumping ability, and so on. [Emphasis in original.]

Kavanaugh was careful to note that there are also ongoing lawsuits arguing that allowing biological males into female sports is a violation of Title IX, and that the Court’s decision was not intended to settle that separate dispute. It is likely to make its way to the Court before too long.

The three liberal justices, joining an opinion by Justice Sonia Sotomayor (plus a lone opinion by Justice Ketanji Brown Jackson) agreed with the majority that Title IX allows sports teams to be separated by biological sex, albeit with some caveats. They also objected to the Court reaching the equal protection challenge, and would have ruled the other way.