On Tuesday, the Supreme Court decisively answered the core legal question in West Virginia v. B. P. J. and Little v. Hecox: whether states could restrict athletes’ participation in school and collegiate sports based on their biological sex. The answer was a resounding yes.
That conclusion was not surprising since Title IX was created to increase opportunities for females, and subsequent legislation made it clear that sex-segregated teams could be necessary to comply with the law. As everyone could clearly see, teams open to participation by both sexes would be physically dominated by males, leaving females with few meaningful opportunities to contribute. The court’s decision in some ways simply recapitulated what we already knew. But despite the court’s clear answer, more litigation is bound to follow since the court refused to address whether Title IX forbids states from letting biological males participate in female sports.
In his majority opinion, Justice Brett Kavanaugh said that both Title IX and the Fourteenth Amendment’s Equal Protection Clause permit these restrictions. On the Title IX question, which applied only to B. P. J., the court was unanimous that the respondent’s claim failed. But the six conservative justices went further, concluding that “sex” in Title IX’s athletics provisions refers to biological sex and allows states to preserve female athletic opportunities by limiting participation based on biology. The three justices in the liberal bloc, Sotomayor, Kagan, and Jackson, agreed but thought the majority went too far by saying that sex must always mean biological sex under Title IX. They feared that doing so could affect transgender students outside of athletics.
On equal protection, Kavanaugh said the laws were sex-based classifications triggering intermediate scrutiny. Unlike strict scrutiny, the most exacting level of review, intermediate scrutiny gives greater latitude to the government. Most importantly, it does not require that every application of a law be perfectly tailored to an individual’s particular circumstances. States may make categorical judgments related to important governmental interests. In athletics, those interests include safety, fairness, and preserving equal opportunities for females.
That point was central to the court’s rejection of a case-by-case regime. The challengers argued that some transgender girls, particularly those who received puberty blockers or hormone therapy, might not retain the physical advantages associated with male puberty. On that point Sotomayor, Kagan, and Jackson dissented and would have required further fact-finding by lower courts.
Kavanaugh rejected that approach. In addition to not being required by intermediate scrutiny, courts would be wading into a biological and political thicket with no manageable standards. Federal courts are hardly institutionally suited for deciding whether a male’s athletic advantages have been sufficiently mitigated by puberty blockers, hormone therapy, or surgery: “In the sports context,” he wrote, “starting down the road of judicially managed individualized exemptions based on physical capabilities of individual athletes could fundamentally undermine women’s and girls’ sports—especially if the number of biological males who seek to play women’s and girls’ sports increases significantly over time. The questions would be endless (and bitter) and yield few, if any, principled answers. The Equal Protection Clause and this Court’s precedents do not require such a judicial quagmire.”
