The Supreme Court this term will finally address one of the most important debates of our time: whether biological men should be allowed to compete in women’s sports. In two upcoming cases, the Court has the opportunity to reverse misguided circuit court decisions that have turned Title IX on its head.
Last month, the Court agreed to hear West Virginia v. B.P.J. and Little v. Hecox—cases in which the Fourth and Ninth Circuits blocked enforcement of laws protecting women’s sports from biological male participation.
West Virginia’s Save Women’s Sports Act simply defines sex by “reproductive biology and genetics at birth.” But the Fourth Circuit, led by Biden appointee Judge Toby Heytens, found that it may violate both Title IX and the Equal Protection Clause. The majority claimed this biological definition was a “facial classification based on gender identity” that merited intermediate scrutiny and remanded for the lower court to resolve factual issues and decide whether the statute survives heightened scrutiny.
Judge G. Steven Agee’s dissent cut through the nonsense: “Gender identity, simply put, has nothing to do with sports. It does not change a person’s biology or physical characteristics. It does not affect how fast someone can run or how far they can throw a ball. Biology does.”
The facts prove Agee’s point. B.P.J., a biologically male eighth grader competing on girls’ teams, displaced over 100 biological girls at track events. Yet the majority concluded “without discussion” that B.P.J. is “similarly situated” to girls for sports purposes—ignoring the obvious competitive advantages biological males possess.
As Judge Agee pointed out, this “turns Title IX on its head.” The law was created to protect women’s opportunities in federally funded education programs. Now courts are using it to eliminate the very protections it was designed to provide.
The Ninth Circuit made the same mistake with Idaho’s Fairness in Women’s Sports Act. The panel struck down Idaho’s law under the Equal Protection Clause after Lindsay Hecox, a biological male, wanted to join Boise State’s women’s track and cross-country team—despite two female runners from Idaho State who had lost to biological males intervening along with state officials to defend the statute.
Clinton appointee Judge Kim Wardlaw’s opinion was divorced from reality, holding that Idaho failed intermediate scrutiny because the state lacks a valid interest in ensuring women have their own athletic teams free from biological male competition. She obtusely claimed that the statute is “not substantially related to its stated goals of equal participation and opportunities for women athletes.”
These judges may be willfully blind, but increasingly legislatures are not. At least 25 states have passed laws protecting women’s sports, recognizing what should be obvious: biology matters in athletics. The Supreme Court now has the chance to restore sanity to this area of law.
Recent signs are encouraging. In United States v. Skrmetti, the Court upheld Tennessee’s restrictions on risky gender-transition procedures for minors, with the majority recognizing rational policymaking instead of inventing discrimination where none exists. Justices Thomas, Alito, and Barrett specifically noted in concurring opinions that transgender status doesn’t merit heightened scrutiny under the Equal Protection Clause—the same conclusion Judge Agee reached.
The damage from allowing biological males in women’s sports has become impossible to ignore. Female athletes are losing scholarships, records, and opportunities they’ve worked their entire lives for. Even some Democrats have started acknowledging the unfairness, while others, like Maine Democrats who bullied a Republican colleague in the state legislature for speaking the truth and were rebuffed by the Supreme Court, have paid a price for their stubborn denial of biological reality.
The current Supreme Court has shown a refreshing willingness to apply common sense rather than bend to activist pressure. These cases seem primed for reversal, which would finally restore the protections Title IX was meant to provide and ensure female athletes get the fair competition they deserve.