Supreme Court upholds bans on biological men in women’s sports
The Supreme Court upheld a pair of state laws on Tuesday barring biological men from participating in women’s sports, in a key ruling set to have wide ramifications for transgender issues across the country.
The high court issued a 6-3 ruling in both cases over state laws barring biological men from women’s sports, finding the state laws did not violate the equal protection clause of the 14th Amendment and were therefore constitutional. Justice Brett Kavanaugh wrote the majority opinion finding that under Title IX, schools may separate sports by biological sex.
“The question before the Court is: Under Title IX and the Equal Protection Clause of the Fourteenth Amendment, may schools maintain women’s and girls’ sports for biological females?” Kavanaugh wrote. “In other words, may schools determine eligibility for women’s and girls’ sports based on biological sex? The answer is yes.”
Kavanaugh explained in his majority opinion that Title IX protects the ability of states to separate sports by biological sex, rejecting arguments that West Virginia’s law is unlawfully discriminatory.
“Put simply, the statute and regulations do not speak to that issue in a way that could properly be interpreted to require schools to allow biological males to participate in women’s and girls’ sports,” Kavanaugh wrote.
“Whether biological males may participate on women’s and girls’ sports teams may be a debated policy question,” he added. “But the legal question for Title IX purposes is whether West Virginia may limit women’s and girls’ sports teams to biological females. As a matter of text and history, West Virginia may do so.”
Regarding the equal protection clause of the Constitution, Kavanaugh rejected the arguments advanced by lawyers for biologically male athletes who sued over the West Virginia and Idaho laws that attempted to keep them out of girls’ sports leagues.
“In the sports context, 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,” he wrote. “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.”
Kavanaugh concluded his opinion by discussing the importance of the ruling for the millions of biological women and girls across the country who “play sports they care deeply” about winning, competing in, and getting scholarships for.
“They put a championship trophy or all-league award on their bedroom shelf—and it stays there forever as a reminder of their love of the game and pride in their achievements,” Kavanaugh wrote. “They learn to endure losses with grace, to lift up their teammates, and to respect opponents who have beaten them fairly and squarely.”
“They learn to win with class—to look a defeated opponent in the eye, shake her hand, and congratulate her on her effort. Whether the star of the team or the last player on the bench, they form lifelong friendships and lifetime memories. They savor their athletic accomplishments and cherish them for years, even decades, after their playing days are over,” he wrote, adding that women’s desire to compete in fair sports “warrants respect.”
Justice Sonia Sotomayor wrote the principal dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson, in which she agreed with the majority in ruling against the transgender athlete’s Title IX claim, on a narrower basis, but disagreed with the majority’s ruling on the equal protection clause.
“Because unresolved factual questions prevent the Court from assessing the merits of B.P.J.’s equal protection claim at this time, the Court should allow the District Court to address those factual questions in the first instance,” Sotomayor wrote. “Yet in an opinion unencumbered by fact or law, the majority today cuts off that process prematurely, deciding instead that B. P. J.’s case must end now.”
The Supreme Court heard two cases this term over a pair of similar laws barring biological men from women’s sports. In Little v. Hecox, Idaho’s Fairness in Women’s Sports Act was at the center of the dispute, which was over whether the law violates the equal protection clause of the 14th Amendment. In West Virginia v. B.P.J., West Virginia’s Save Women’s Sports Act was at the center of the case, and the justices had to decide whether the state law violates either the equal protection clause or Title IX.
The high court held arguments in both cases back-to-back in January, with a majority of the bench appearing deeply skeptical of efforts by transgender athletes and activists to strike down the laws, which the states argued protect women’s sports by ensuring women and girls can compete fairly. Among the questions asked, the justices grilled lawyers about the competitive advantage that biological men have over biological women, and whether cross-sex hormones could ever suppress that advantage.
Officials from both states whose laws were at the center of Tuesday’s ruling hailed the Supreme Court’s decision. West Virginia Attorney General JB McCuskey celebrated the ruling by calling it a “monumental victory for every female athlete who has ever competed, or dreamed of competing, on a fair and safe playing field.”
“Today’s Supreme Court decision affirms what common sense and the law have long made clear: states have the right to designate sports teams based on biological sex, not gender identity,” McCuskey said. “Without that delineation, Title IX is turned on its head and decades of hard-fought progress to advance female athletes is erased.
“I am immensely proud of my team for not only getting this issue before the Court but for delivering sound and successful arguments. This landmark victory will give all states, not just West Virginia, the clarity and confidence to ensure fairness and safety for female athletes today and for generations to come.”
Idaho Attorney General Raul Labrador called it a “victory for common sense, fairness, and the countless girls and women who dedicate themselves to athletics.”
“Idaho led the nation by becoming the first state to protect women’s sports, and I’ve never wavered in defending that law,” Labrador said. “The Supreme Court has now confirmed that states can preserve fair competition and protect the opportunities that generations of women fought to secure. Every parent can rest assured that our law protects their daughters competing in Idaho.”
The pair of cases was among the most closely watched issues of this Supreme Court term, coming one year after the high court upheld state laws barring transgender drugs and surgeries for children in United States v. Skrmetti.
The ruling Tuesday allows states to limit women’s sports to biological women but does not address whether states allowing biological men to compete in women’s sports is unlawful. A case on that matter could make its way to the high court in the coming years.