WASHINGTON, D.C. — In one of the most consequential LGBTQ rights decisions since its ruling in Bostock v. Clayton County six years ago, the U.S. Supreme Court ruled Tuesday that states may constitutionally restrict girls’ and women’s school sports to biological females, holding that such laws comply with both Title IX and the Equal Protection Clause of the Fourteenth Amendment.
The Court’s 6-3 decision in West Virginia v. B.P.J. and Little v. Hecox reversed lower court rulings that had blocked or limited enforcement of laws enacted in West Virginia and Idaho. Justice Brett Kavanaugh wrote for the majority, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett.
The Court concluded that Title IX permits schools to maintain separate athletic teams based on biological sex and that states have sufficiently important interests in competitive fairness and athlete safety to satisfy constitutional scrutiny.
But while all three liberal justices agreed that the text of Title IX itself does not compel schools to permit transgender girls to compete on girls’ teams, they sharply rejected the majority’s constitutional analysis. Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, issued a lengthy dissent accusing the majority of abandoning established Equal Protection principles. Justice Jackson separately wrote to explain why she believed the Court was improperly deciding scientific disputes better left to legislatures and lower courts.
Justice Kavanaugh began by describing Title IX as one of the nation’s most transformative civil rights laws.
“Title IX transformed American sports and American life,” he wrote. “Enacted in 1972, that landmark law promoted equal opportunity for female student-athletes and has facilitated the extraordinary growth of women’s and girls’ sports over the past 54 years.”
The majority emphasized that sex-separated sports have long been recognized as compatible with Title IX because of “inherent physical differences” between males and females.
“Those ‘[p]hysical differences between men and women’ are ‘enduring,'” Kavanaugh wrote, quoting earlier Supreme Court precedent. “The differences include, among other things, height, weight, strength, speed, endurance, and jumping ability.”
According to the Court, those biological differences justify maintaining separate athletic opportunities for girls and women.
The majority observed that 27 states, along with organizations including the NCAA, the U.S. Olympic and Paralympic Committee and the International Olympic Committee, have adopted policies excluding biological males from women’s sports. It concluded that Title IX’s text, its implementing regulations and Congress’ intent all point toward biological sex—not gender identity—as the governing classification for athletic participation.
Rejecting the plaintiffs’ statutory argument, Kavanaugh wrote that “the term ‘sex’ in the 1972 Title IX statute, the 1974 Javits Amendment, and the 1975 Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex.”
The Court further rejected reliance on Bostock, explaining that employment discrimination law does not control the interpretation of Title IX in the athletic context.
“Title VII concerns employment, whereas Title IX as relevant here focuses on sports,” Kavanaugh wrote. “The two factual contexts are vastly different.”
Turning to the Equal Protection Clause, the majority held that states have important governmental interests in protecting both competitive fairness and athlete safety.
“The States argue—and we agree—that the interests in safety and competitive fairness are important for purposes of equal protection analysis,” Kavanaugh wrote. “And the States’ sex-based classification—limiting women’s and girls’ sports to biological females—is substantially related to those interests.”
The opinion emphasized what it characterized as the practical realities of athletic competition.
“Sports are generally zero sum,” Kavanaugh wrote. “Every biological male who makes the team takes a roster spot from a female athlete. Every biological male who earns playing time reduces the playing time of a female athlete. Every biological male who starts takes a starting position from a female athlete. Every biological male who wins a race takes the gold medal away from a female athlete.”
The majority concluded that states need not conduct individualized evaluations of every transgender athlete’s physical abilities before enforcing categorical eligibility rules.
Despite ruling against the transgender student-athletes, Kavanaugh acknowledged the human impact of the dispute.
“It is an unhappy occasion whenever a student who wants to play school sports cannot do so,” he wrote. “We appreciate the desire of every student, including B. P. J., who wants to play school sports.”
The Court also sought to temper the broader social implications of its decision.
“Most of the biological female and transgender student-athletes who are involved in transgender sports disputes around the country are teenagers or in their early twenties,” Kavanaugh wrote. “Those student-athletes want to play sports. Their desire to compete warrants respect. No student-athlete on either side of the issue, whether a biological female or transgender, deserves to be ostracized or vilified.”
Justice Sotomayor’s dissent, however, portrayed the decision as a profound departure from settled constitutional doctrine.
She accused the majority of reaching conclusions unsupported by either the factual record or longstanding Equal Protection jurisprudence.
According to Alliance for Justice, Sotomayor wrote that the majority opinion was “unencumbered by fact or law” and faulted the Court for relying on scientific studies that were not part of the record before it. She criticized the majority for citing one study published after oral argument and another that she said had been misinterpreted by the Court.
Sotomayor warned that the decision’s reasoning extends well beyond athletics.
“The majority applies its diminished view of equal protection to the sports context today, relying on the parties’ concessions that the State’s asserted interests will be furthered in most applications, given the particularly close relationship between sex, sports, and those interests,” she wrote. “One can only hope that the same misguided approach does not and will not extend to other contexts tomorrow, when any of these considerations are missing.”
Justice Jackson agreed that the plaintiffs could not prevail under Title IX as currently written, but argued separately that the majority improperly constitutionalized disputed scientific judgments rather than applying traditional Equal Protection analysis. She cautioned against allowing constitutional doctrine to turn on evolving scientific claims regarding athletic performance rather than on established principles governing discrimination.
Civil rights organizations condemned the ruling almost immediately.
Joshua Block, senior counsel with the American Civil Liberties Union’s LGBTQ & HIV Rights Project, called the decision “a heartbreaking ruling for our clients and transgender girls like them who’ve asked for nothing more than the same opportunities afforded to their peers.”
“The reality is that the equality of transgender women and girls takes nothing away from, and in fact promotes, the equality of all women and girls,” Block said. “We will continue to advance the fundamental principle that all young people deserve equal opportunity to thrive and succeed.”
Lambda Legal’s Sasha Buchert likewise criticized the decision.
“This ruling is deeply harmful for transgender women and girls who only asked for the ability to participate in sports with their peers,” Buchert said. “We will not be deterred and will continue to fight back to secure the equal participation that all youth, including transgender youth, deserve.”
Alliance for Justice President Rachel Rossi described the ruling as “a terrible setback for transgender people and the Constitution’s promise of civil rights.”
“As we’ve watched the campaign of hate against transgender people grow over the last decade, athletic participation has too often been the gateway for many people to justify discrimination against the trans community,” Rossi said. “Transgender young people already face mounting challenges, and there are no winners when they’re further deprived of athletic opportunities and the accompanying lessons of discipline, leadership, and teamwork.”
The ruling establishes that states may maintain girls’ and women’s sports based on biological sex without violating either Title IX or the Equal Protection Clause, resolving one of the most closely watched constitutional disputes involving transgender rights since Bostock. At the same time, the sharply worded dissents underscore that the Court remains deeply divided over how constitutional equality principles should apply to transgender Americans. For supporters of the majority, the decision secures what they view as the original promise of Title IX to protect women’s athletic opportunities. For the dissenters, it represents a significant contraction of Equal Protection doctrine whose consequences, as Sotomayor warned, may extend well beyond school athletics.
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SCOTUS got it right, men should not be competing in women’s sports.
Did they now?
First of all, the ruling allows states to ban transathletes from competing… but it doesn’t compel them to ban. So in California, for example, this ruling changes nothing.
Moreover, “But while all three liberal justices agreed that the text of Title IX itself does not compel schools to permit transgender girls to compete on girls’ teams, they sharply rejected the majority’s constitutional analysis.”
“Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, issued a lengthy dissent accusing the majority of abandoning established Equal Protection principles. Justice Jackson separately wrote to explain why she believed the Court was improperly deciding scientific disputes better left to legislatures and lower courts.”
So did they get the ruling right? That’s debatable. But this is far more complicated than “men should not be competing in women’s sports.”
You cite the three liberal justices who always vote lock step together on every policy?
“But this is far more complicated than “men should not be competing in women’s sports.”
No, actually it’s that simple.
But this ruling doesn’t prevent California from allowing trans athletes to compete with cisgender athletes – so how do you shrug that point off?
Wrong.
They have not voted “in lockstep with each other” several times now.
So you know what you can do with your “always” and your “every.”
You. Are. Wrong.
True, there have been a few instances where the cases brought before tSCOTUS were so obvious that the only one that voted against the other eight was Justice Jackson. But I tend to give her a pass because she’s not the sharpest tool in the shed.
How do you discern that?
“True, there have been a few instances where the cases brought before tSCOTUS were so obvious that the only one that voted against the other eight was Justice Jackson. But I tend to give her a pass because she’s not the sharpest tool in the shed.”
🤣😂🤣😂🤣😂🤣😂🤣😂🤣😂🤣😂
You’re correlating being the lone dissenter on SCOTUS with being “not the sharpest tool in the shed?”
I guess you’re applying your gimlet-sharp (🤣😂🤣😂🤣😂) acumen to the likes of Scalia and others who had reputations as the lone dissenter.
You can’t make this stuff up, folks. 🤣😂🤣😂🤣😂🤣😂🤣😂🤣😂 Just laugh.
ETA: And…”so obvious” 🙄🙄🙄🙄
You are not a constitutional scholar so that part of your “logic” can be ignored.
“Justice Jackson separately wrote to explain why she believed the Court was improperly deciding scientific disputes better left to legislatures and lower courts.”
Right – I’m sure that the legislature in Alabama will come to the same conclusion as the legislature in California. And that judges in lower courts are also experts in biology, and will also view this issue in a uniform manner across the country.
The one thing that this issue ISN’T about is science.
By the way, didn’t California come up with some kind of so-called “solution”, when (if a trans girl) wins an event, a duplicate award has to be given to the second-place cis girl?
If so, what kind of message or solution is THAT? Isn’t this the same thing as stating that there’s two different “categories” of people competing in some events? And that trans girls are (ultimately) “not” girls?
Also, doesn’t this potentially “out” the trans girl?