Supreme Court Finds that State Laws Limiting Participation in Girls’ and Women’s Sports Do Not Violate Title IX or the U.S. Constitution’s Equal Protection Clause

A West Virginia law passed in 2021 imposed a categorical ban on biological males participating in female sports. B.P.J., a biological male who identifies as female, challenged the law in court claiming it violated Title IX and the Equal Protection clause of the U.S. Constitution. Idaho passed a similar law in 2020, which was also challenged by a biological male who identifies as female. The challenges to both state laws were the subject of a decision in the case of West Virginia v. B.P.J..

Twenty-seven states, and athletic organizations including the National Collegiate Athletic Association, the U.S. Olympic & Paralympic Committee, and the International Olympic Committee have also adopted policies limiting female sports to biological female.

Laws that provide for sex-based classifications are examined under a legal standard that is referred to as “intermediate scrutiny.” To pass constitutional muster, a sex-based legal classification must be "substantially related" to achieving an "important government objective.” The Court noted that biological sex differences in sports are enduring, affecting height, weight, strength, speed, and endurance. The Court noted the ongoing scientific debate about the effects of puberty blockers and hormones, and how they may impact sex-based differences that impact athletic abilities, weighed in favor of the Court deferring to state legislative judgments about whether it may be appropriate to bar biological males from participating in female athletics.

The 14th Amendment's Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws". Title IX prohibits sex-based discrimination in school sports.

In B.P.J., the Court noted that Title IX allows schools to provide separate women’s and men’s sports teams defined by biological sex. The Court also concluded that under the Equal Protection Clause, schools may determine eligibility for women’s and girls’ sports based on biological sex given the States’ interests in ensuring safety and competitive fairness.

The Court explicitly noted that it was not considering the question of whether permitting biological males to participate in girls’ and women’s sports would violate Title IX or the Equal Protection Clause.

While significant, the B.P.J. decision is not likely to have any immediate practical consequences for school districts in New York. This is because New York State law requires that students be allowed to participate in athletics based on their gender identity, without regard to a student’s biological sex.