On June 30, the Supreme Court ruled in West Virginia v. B.P.J. and Little v. Hecox that neither Title IX nor the Equal Protection Clause prevent states from providing separate men’s and women’s sports teams on the basis of biological sex. Notably, since approximately 2020, 27 states have enacted legislation to maintain female sports for biological females. The judgment is a victory for common sense.
The consolidated cases were brought by male athletes who wished to compete on female sports teams on the basis of their transgender identification. At issue was whether state laws in West Virginia and Idaho that prevent such an outcome discriminate on the basis of sex in violation of federal civil-rights laws and the Constitution.
In a unanimous 9–0 ruling, the Court declared that the states’ laws enacting sex-separated athletics are indeed consistent with, and do not violate, Title IX. Delivering the opinion, Justice Brett Kavanaugh confirmed that “Title IX’s implementing regulations expressly permit schools to maintain separate teams for ‘members of each sex’” and that “the term ‘sex’ in Title IX cannot plausibly be interpreted to refer to anything other than biological sex.”
Moreover, on the constitutional question, the Court held 6–3 that sex-based classifications advancing safety and competitive fairness for biological women and girls are constitutionally sufficient interests such that states “d[o] not violate the Equal Protection Clause of the Fourteenth Amendment by maintaining female sports teams for biological females.”
This ruling comports with amicus briefs filed by Do No Harm. In our briefs in support of West Virginia and Idaho governor Bradley Little (R), we argued that sex and gender identity are fundamentally distinct and that altering the latter has no bearing on the former. (“Scientific facts do not change with the shifting winds of cultural ideology: An individual’s gender identity does not alter his or her sex.”)
We argued further that the lower court decisions in these cases “reflexively assumed that using puberty blockers and cross-sex hormones to treat gender dysphoria is beyond debate” and had effectively “eviscerat[ed] the entire idea of boys’ and girls’ sports teams.”
As Justice Thomas echoed in his concurring opinion: “Men and boys with gender dysphoria are not women or girls, even if they believe that they are. Sex is an immutable ‘biological’ characteristic; it is binary; and ‘man’ and ‘woman,’ ‘boy’ and ‘girl,’ are the terms that correspond to adults and children of each sex.”
Likewise, the Court specifically noted that even if the premise advanced by the transgender athletes were true — “that at least some biological males who identify as female and take puberty blockers or hormones do not retain physical advantages over biological females” — states would nevertheless be constitutionally justified in maintaining sex-separated sports teams on the basis of the important interests in advancing safety and competitive fairness for the female sex.
Importantly, the Court also noted that the issue of whether or to what extent differences are retained following the administration of puberty blockers or hormones is not a decided question and “is the subject of ongoing medical and scientific debate.” Courts should not take it for granted.
Do No Harm welcomes the Court’s straightforward reasoning and ruling. Yet we also look forward to the inevitable next question, helpfully previewed by a footnote in Justice Kavanaugh’s opinion:
As the plaintiffs, the States, and the United States as amicus curiae all agree, these cases do not present the distinct question of whether, under Title IX and the Equal Protection Clause, schools may allow biological males who identify as female to participate on girls’ and women’s sports teams. That question is currently the subject of litigation in some lower courts. Nothing in this opinion is intended to decide that question.
The Court is, of course, correct. Having now confirmed that Title IX and the Constitution permit states to protect women’s sports from unfair and unsafe incursions by male athletes, courts will have to decide next whether states must do so.
