Supreme Court Holds States May Exclude Men from Women’s Sports Programs Under Title IX and The Equal Protection Clause

By Liam Hart

In the combined cases of West Virginia v. B.P.J. and Little v. Hecox, the U.S. Supreme Court held that Title IX allows schools to maintain separate men’s and women's sports programs based on biological sex. Writing for the majority, Justice Kavanaugh’s opinion held that the term “sex” in Title IX cannot “plausibly be interpreted to refer to anything other than biological sex.” Kavanaugh’s opinion explained that at the time of Title IX’s enactment, “sex” referred to biological sex and not gender identity. Additionally, the opinion states that “sex” must refer to biological sex because Title IX’s regulatory framework permits separation of sports teams based on the inherent differences between men and women. The other major holding in these opinions focuses on the Equal Protection Clause of the Fourteenth Amendment. The Court agreed with the states that, under current precedent, the states may use sex-based classifications to exclude men from women’s sports teams because such classifications are substantially related to the important government objective of safety and competitive fairness in women’s sports.  

The two states, West Virginia and Idaho, represent the interests of twenty-seven other states with similar laws banning men from women’s sports. In 2020, Idaho passed the Fairness in Women’s Sports Act (FWSA), which bars male students from playing on women’s sports teams. Idaho law defines sex by biology. Idaho also recognizes the inherent physical advantages that natural testosterone provides to men. Idaho sought to level the playing field by banning men from women's sports because of the inherent physical advantages of male athletes. Hecox, a male who identifies as female, competed on the Boise State women’s club soccer team and tried out for the women’s Division I track and cross-country teams. After Idaho enacted the Fairness in Women’s Sports Act, Hecox sued Idaho officials, alleging that the FWSA violated the Equal Protection Clause. The district court granted a preliminary injunction that barred Idaho from enforcing the FWSA and the 9th Circuit affirmed the decision.  

Similarly, in 2021, West Virginia passed the Save Women’s Sports Act (SWSA), which bans men from women’s sports. The law specifies that sex is determined by biology and that prohibiting men from playing in women's sports is necessary to ensure equal athletic opportunity. B.P.J. is a male who identifies as female. B.P.J. was about to enter 6th grade when West Virginia passed the SWSA. The principal of the middle school informed B.P.J.’s mother that he could not play on the girl’s team. B.P.J. is attending high school, where he has been competing on girls' teams and recently won the girls' high school state shot put championship. B.P.J. sued West Virginia on two counts, for alleged violation of Title IX and for alleged violation of the Equal Protection Clause of the Fourteenth Amendment. The district court ruled in favor of West Virginia on both counts. B.P.J. appealed and the 4th Circuit reversed the Title IX claim and remanded the Equal Protection Clause claim.  

The Supreme Court addressed B.P.J.’s Title IX claim first. According to B.P.J., West Virginia must allow men who identify as women and have taken puberty blockers to compete on women's teams. B.P.J. concedes that West Virginia may prohibit most men from competing on women's teams but claims it cannot prohibit men who are on puberty blockers. B.P.J. claims that puberty blockers make it unreasonable to exclude men because the puberty blockers inhibit natural male testosterone, thus reducing the natural advantage men have. The Court disagreed, stating that the scientific premise is a matter of ongoing debate in the medical community; the states that prohibit males from competing in female sports programs are not wrong in relying on the reality that males retain natural physical advantages even with puberty blockers. Further, the Court explains that the safety risks in contact sports are so severe that allowing males to play women’s sports would put women at serious risk of injury. Additionally, the Court held that allowing males to compete on women’s teams ruins competitive fairness because it deprives women of playing time, medals, and starting positions. The Court held that, for legal purposes under Title IX, states may exclude men from women’s sports.  

The court then addressed the Equal Protection Clause claims in both cases. First, both B.P.J. and Hecox concede that states may prohibit most males from women’s sports because of safety and fairness concerns. However, B.P.J. and Hecox argued that the state’s interests in safety and fairness do not justify excluding all men, especially those who take puberty blockers and identify as women, because the blockers reduce safety risks and the competitive gap. Thus, both B.P.J. and Hecox argue that there is no substantial relationship between the biological male classification and the state’s interest in safety and competitive fairness because puberty blockers achieve the state's interests. Therefore, states should consider prohibiting males from women’s sports on a case-by-case basis.  

The Supreme Court, however, disagreed with this reasoning. The Court held that precedent allows states to make general sex-based classifications to exclude men from women’s sports. Additionally, in assessing whether the state’s interest is achieved, the Court held that these state laws would survive a challenge under intermediate scrutiny, namely, that sex-based classifications must be “substantially related” to furthering a government objective. In this case, the Court evaluated the validity of the regulation of women’s sports by its relation to the general problem of safety and fairness, rather than by the extent to which the state’s interests are furthered. Thus, the Court concluded that, because states have a general interest in safety and fairness, they need not consider individual cases when adopting regulations barring men from women’s sports.  

B.P.J. and Hecox also argued that the laws, as applied, are unconstitutional because the state's sex-based classification is generally constitutional, but unconstitutional when applied to males who identify as female and take puberty blockers. The Court reasoned that this is essentially the same argument as the first, calling it a backdoor attempt to apply strict scrutiny since it would require the court to determine exemptions. The Court was concerned that the as-applied argument would create serious judicial administration problems, forcing courts to apply strict scrutiny in an intermediate-scrutiny situation. Creating exemptions is the role of the legislature. To avoid a “judicial quagmire,” the Court rejected this argument.

The final Equal Protection Clause argument that B.P.J. and Hecox pursued is that the state's laws unconstitutionally discriminate against males who identify as female. The Court rejects this argument because the laws in place classify based on biological sex.  

The Court concludes with a general note: the premise that some males do not retain advantages after using puberty blockers or hormones would not alter the Equal Protection conclusions the Court laid out. Under intermediate scrutiny, there is a sufficient relationship between a state’s classification of biological sex and its interest in fairness and safety. Additionally, the Court notes that the premise is debated in the scientific community and by organizations such as the International Olympic Committee. The Court ruled in favor of the states, upholding their ability to maintain sex-based classifications in sports.  

Justice Thomas joined the majority in full but wrote a concurring opinion, making two brief points. First, transgender status is not a protected class that requires heightened Equal Protection scrutiny. He noted that those with gender dysphoria have a mutable mental state, which does not resemble the immutable characteristics on which the Court has applied heightened scrutiny—such as race, sex, or national origin. Rather, gender dysphoria more closely resembles characteristics where discrimination is reviewed under rational basis scrutiny. Rational basis is the most lenient level of court review, where the government only needs a reasonable justification for its actions. Second, Thomas notes that sex is binary and immutable. Thus, men who believe they are women are not women. Men are men. Women are women. To quote Justice Thomas, "to use language to obscure reality—to show 'indifference regarding the truth'—is to lie to the public and cease to treat our fellow citizens 'as equal[s].'"

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