The Supreme Court today issued a consolidated ruling in the two cases—West Virginia v. B.P.J. and Little v. Hecox—that present the question whether state laws that preserve girls’ and women’s sports teams for girls and women violate federal law. The plaintiff in each case is a biological male who identifies as female. B.P.J. challenged West Virginia law on the basis of both Title IX and the Equal Protection Clause. Hecox challenged Idaho law on Equal Protection grounds.
The Court ruled 6 to 3 in favor of the state laws. Justice Kavanaugh wrote an excellent majority opinion for six justices. Here’s a brief summary:
On Title IX: Title IX’s implementing regulations expressly permit schools to maintain separate teams for members of each sex. B.P.J. agrees that Title IX permits to maintain separate female and male teams and to prohibit most biological males from playing on women’s and girls’ teams. But B.P.J. contends that schools must make an exception to that general rule for biological males who identify as female and have taken puberty blockers or hormones.
The term “sex” in Title IX means biological sex, not gender identity. The texts of Title IX, the Javits Amendment, and the Title IX regulations do not say (or even hint) that schools must allow certain biological males to participate in women’s and girls’ sports.
On Equal Protection: The Equal Protection Clause allows schools to maintain separate teams for female and male athletes. Schools may determine eligibility for women’s and girls’ teams based on biological sex. That policy is constitutionally justified by the vitally important interests in safety and competitive fairness so as to provide equal opportunities for women and girls to participate in sports. And when a sex-based classification is justified as a constitutional matter, as it is here, States need not make case-by-case exceptions—for example, schools need not make individual exceptions to allow certain biological males to compete in women’s and girls’ sports.
The three liberal justices agreed that B.P.J.’s Title IX claim failed (even as they would have preferred that the majority merely assume, rather than hold, that the term “sex” in Title IX means biological sex). They did not conclude that B.P.J. should have prevailed on the Equal Protection claim. They instead would have remanded the case to the district court to resolve the factual dispute over whether boys who identify as female, who haven’t gone through puberty, and who are receiving cross-sex hormones are similarly situated to girls. They would also have dismissed the Hecox case as moot.
A few observations:
1. Kavanaugh’s majority opinion is blessedly free of transgender semantics. He refers dozens of times to “biological males” and not a single time to “transgender girls” or “transgender women.” He also deftly avoids any use of pronouns for B.P.J. or Hecox.
2. Kavanaugh explains that the Court’s Title VII ruling in Bostock v. Clayton County (2020) is not relevant in the very different context of Title IX and sports. (Slip op. at 13-14.) In addition to joining Kavanaugh’s opinion, Justice Gorsuch, author of Bostock, says the same in a concurring opinion.
3. The Court’s reasoning should lead lower courts to reject Title IX and Equal Protection challenges to other sex-segregated facilities—e.g., bathrooms, locker rooms, dormitories. Privacy interests in those other contexts will substitute for the interests in safety and competitive fairness.