Over the past few years, this column has highlighted cases involving transgender athletes and their attempts to compete in sports aligning with their gender identity, not their gender recorded at birth (see October 2024, December 2023 and May 2022). As a result of the national headlines surrounding transgender athletes, intense policy debate and legal disputes ensued over whether transgender females, assigned male at birth, should be allowed to play on women’s and girls’ sports teams. In fact, 27 states passed laws prohibiting transgender females from participating in female sports.
However, when college and high school athletics associations impose rules prohibiting transgender athletes from competing against athletes in certain sports, they risk Title IX and Fourteenth Amendment equal protections lawsuits. With so much uncertainty surrounding how to treat transgender athletes, the United States Supreme Court decided to hear the issue in West Virginia v. B.P.J., 2026 U.S. LEXIS 2884.
Idaho, West Virginia, 25 others
In 2020, Idaho passed the Fairness in Women’s Sports Act prohibiting transgender females from participating on female teams. Shortly after the law went into effect, Lindsay Hecox, a transgender female, sued Idaho officials alleging a violation of the Equal Protection Clause. The District Court for Idaho granted a preliminary injunction barring enforcement of the Fairness in Women’s Sports Act, which the Ninth Circuit affirmed.
In 2021, West Virginia passed the Save Women’s Sports Act. The act banned all transgender females from participating in school sports designated for female students. When West Virginia enacted the ban, Becky Pepper-Jackson, a transgender female, was nearing the end of fifth grade and preparing to enter middle school and join the girls’ cross country and track and field teams. The middle school’s principal, however, informed her mother that the act prevented Pepper-Jackson from participating on either team.
A month after West Virginia passed the Save Women’s Sports Act, Pepper-Jackson, through her mother, brought this lawsuit, arguing that the act violated both the Equal Protection Clause and Title IX. The District Court granted a preliminary injunction barring West Virginia from enforcing the ban against Pepper-Jackson, concluding that the ban was unconstitutional and violated Title IX. On appeal, the U.S. Court of Appeals for the Fourth Circuit reversed on the Title IX issue and remanded on the Equal Protection claim.
With 25 additional states enacting laws that prohibit transgender females from competing on female teams, and disagreement among the lower courts on the legality of such laws, the United States Supreme Court agreed to hear both appeals. In reviewing the issue, the Supreme Court first addressed whether the laws violated Title IX.
Pepper-Jackson argued that state and school officials violated Title IX by excluding Becky from the girls’ cross country and track and field teams. Under Title IX, Pepper-Jackson argued schools must allow biological males who identify as female and who have taken puberty blockers or hormones to compete on girls’ sports teams. In rejecting this argument, the Supreme Court held that Title IX’s regulations expressly permit schools to maintain separate teams for “members of each sex.” Since the term “sex” at the time of enactment in the early 1970s was biological sex and not gender identity, the Supreme Court held that sex cannot be interpreted to refer to anything other than biological sex.
While Pepper-Jackson agreed that Title IX permits schools to maintain separate female and male teams and to prohibit most biological males from playing on women’s and girls’ teams, Pepper-Jackson argued that Title IX allows exceptions to that general rule for biological males who identify as female and who have taken puberty blockers or hormones. The Supreme Court rejected this argument and held that Title IX regulations do not say or even hint that schools must make an exception for those biological males who identify as female and have taken puberty blockers or hormones. In particular, the Supreme Court held that while allowing transgender females to participate on women’s and girls’ sports teams may be a debated policy question, legally Title IX allows schools to provide separate women’s and men’s sports teams defined by biological sex.
‘Important’ government objectives
Having found that Title IX does not apply, the Supreme Court next addressed whether the West Virginia and Idaho laws violated the Equal Protection Clause. Under the Equal Protection Clause, laws that discriminate by sex are subject to what is known as the intermediate scrutiny test. Applying this test, West Virginia and Idaho needed to show that the laws are “substantially related” to achieving an “important” government objective.
The West Virginia and Idaho laws authorize separate female and male sports teams by limiting women’s and girls’ sports teams to biological females. Therefore, the Supreme Court held, the states need to show that their interests in maintaining separate teams for males and females, and in limiting female teams to biological females, was an important government interest and that their respective acts were substantially related to achieving that objective. West Virginia and Idaho claimed that biological males generally possess inherent physical advantages in sports. Therefore, West Virginia and Idaho argued limiting women’s and girls’ sports to biological females helps prevent serious physical injuries to female athletes, ensures competitive fairness and preserves opportunities for female athletes to fairly compete against other biological women and girls.
In accepting the arguments of West Virginia and Idaho, the Supreme Court held that the states’ interests in safety and competitive fairness are important government interests and that the states’ sex-based classification limiting women’s and girls’ sports to biological females is substantially related to those interests. Therefore, the Supreme Court held schools may maintain women’s and girls’ sports for biological females.
As for the athletes’ argument that while safety and competitive fairness are sufficient reasons to exclude most biological males, the Equal Protection Clause does not justify excluding a relatively small subclass of aspiring athletes who identify as female — and who have taken puberty blockers or hormones — from participation in women’s and girls’ sports.
In rejecting this argument, the Supreme Court held that the Equal Protection Clause does not require individual assessments of the laws but allows general classifications like those made in the West Virginia and Idaho laws so long as there is at least a substantial relationship between the classification and the government’s interests. When analyzing the relationship between the classification based on biological sex and the asserted interests, the Supreme Court held that in the context of sports, West Virginia and Idaho may make distinctions based on sex, treating all biological males the same and all biological females the same, given the inherent physical differences between women and men. The laws are constitutionally justified by the important interests in safety and competitive fairness so as to provide equal opportunities for women and girls to participate in sports. And when a sex-based classification is justified as a constitutional matter, as it is here, schools need not make individual exceptions to allow certain biological males to compete in women’s and girls’ sports.
With all these factors in mind, the Supreme Court held that, consistent with Title IX and the Equal Protection Clause, schools are allowed to maintain separate teams for female and male athletes based on biological sex.
Additional states? Trans males?
As the Supreme Court noted, the issues surrounding transgender athletes is deeply sensitive, contentious and evolving. So, what can the Supreme Court’s decision in West Virginia v. B.P.J., 2026 U.S. LEXIS 2884 teach sports administrators?
First, because of the court’s decision, West Virginia, Idaho and the 25 other states that currently have laws excluding transgender athletes from competing against cisgender females can enforce them simply because the states believe transgender females have an inherent athletic advantage, even if the facts show that they do not. What the decision does not do, however, is mandate the other 23 states to enact such laws. So, transgender athletes in some states will be allowed to compete against the gender with which they identify, while transgender athletes in other states will not.
Second, in the five years since the ban has been in place, Becky Pepper-Jackson is the only transgender girl identified in West Virginia who has sought to play sports with biological girls. Therefore, instead of a blanket ban on all transgender athletes, the better outcome would have been to require a case-by-case assessment. Under such a policy, transgender athletes could participate on teams matching their gender identity if their schools and state athletics associations determined that allowing the student to play would not adversely affect competitive equity or the safety of teammates or opposing athletes.
Finally, while the court and states are concerned about the impact transgender females could have on female sports, the law opens an interesting dilemma: What about athletes identified as females at birth who transition to male? Are transgender males, assigned female at birth, eligible to compete against females? If the states are concerned about female athletes’ safety, competitive fairness and the loss of roster spots, it would seem that a transgender male — in the process of accumulating testosterone and potential muscle mass — might pose as great a threat to cisgender females as a transgender female. These laws would require transgender males to compete against female athletes.
