The U.S. Supreme Court decision this week allowing states to exclude transgender girls and women from female sports settles one major issue, but leaves school leaders navigating major gray areas.
The decision in West Virginia v. B.P.J., which was 6-3 on one key issue and unanimous on another, upholds policies now in place in 27 states but stops short of creating a nationwide rule. Instead, the court left open whether states may adopt policies that protect transgender girls’ participation consistent with their gender identity.
“Nothing in this opinion is intended to decide that question,” Justice Brett M. Kavanaugh said in a footnote in the majority opinion.
The outcome was not a surprise. It was clear from oral arguments in January in the West Virginia case and its companion from Idaho, Little v. Hecox, that the court’s six-justice conservative majority was likely to uphold the state laws that separate sports teams by “biological sex.”
But the ruling, applauded by the Trump administration and its allies on this issue, lands amid a broader judicial trend. The court has been hostile to LGBTQ+ rights in the last two years, in this term alone allowing a challenge to Colorado’s ban on conversion therapy to move forward and ruling that California policies on respecting students’ gender identity interfere with the right of parents to direct the upbringing of their children.
The June 30 decision on state laws over transgender sports is part of a pattern that demonstrates that “the court is very hostile to trans rights,” Erwin Chemerinsky, the dean of the University of California-Berkeley law school, said the day after the ruling at a panel discussion at Georgetown University Law Center.
He noted that the high court had long embraced the idea “that the judiciary has a special role in protecting minorities that aren’t going to be safe for themselves from the political process. Trans individuals are exactly that kind of minority today, yet the Supreme Court is entirely abandoning protection of them.”
The ruling provides legal clarity on a key issue in the transgender rights debate, but leaves school leaders navigating a complex, evolving landscape.
Title IX allows sex-separated teams based on biological sex, the court rules
Writing for the court in the sports cases, Kavanaugh said that both Title IX, the federal statute that bars sex discrimination in federally funded schools, and the 14th Amendment’s equal-protection clause allow schools to maintain separate girls’ and boys’ athletic teams based on biological sex.
The majority emphasized competitive fairness and safety as justification for the separation, citing policies used by athletic organizations.
“The two states here—along with 25 other states, the [International Olympic Committee], the [United States Olympic and Paralympic Committee], and the NCAA—have concluded at this time that women and girls should be allowed to compete for those life-changing opportunities on an equal playing field, without fear of physical injury from biological males or being forced to compete against biological males,” Kavanaugh said, using the term favored by many conservatives and opponents of transgender rights instead of “transgender females.”
“The Constitution and Title IX do not require an overhaul of women’s and girls’ sports throughout America,” he said.
His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, and Amy Coney Barrett.
Kavanaugh argued that the term “sex” in the 1972 Title IX law, a subsequent 1974 statute, and the law’s first regulations in 1975 “cannot plausibly be interpreted to refer to anything other than biological sex.”
Those early regulations “allowed separate sports teams precisely because of the biological differences between the sexes—namely, the inherent physical differences between biological women and biological men,” he said.
Notably, the court’s three more liberal members agreed that Title IX permits sex-based teams. Justice Sonia Sotomayor was joined in an opinion by Justices Elena Kagan and Ketanji Brown Jackson.
In discussing the West Virginia law (the only one of the two challenged under Title IX), Sotomayor said she agreed with the majority that the state ban does not violate the federal statute.
“[E]ven though West Virginia’s policy of separating sports teams by sex identified at birth draws a sex distinction, it is one that Title IX allows,” she said.
Like the majority, her opinion also rejected the challengers’ argument that Bostock v. Clayton County, the court’s 2020 ruling that Title VII of the Civil Rights Act of 1964 protected employees based on sexual orientation and gender identity, applied in the context of school sports.
But she drew a boundary: Title IX does not allow schools to broadly exclude transgender students from all programs or activities.
“I do not understand the majority to suggest, for instance, that schools could expressly bar transgender students from participating in certain classes or extracurricular activities entirely, or on the more extreme end, that schools could expel transgender students because they are transgender, and that those actions would not violate Title IX,” Sotomayor said.
Jackson, in a separate opinion, said that while she agreed that Title IX did not block the state laws, she did not agree with the majority that Title IX’s reference to “sex” means only sex assigned at birth.
“Title IX makes room for individuals to live in the gender they choose,” Jackson said. “It cares not just about sex assigned at birth but also about individuals’ ability to match (or not) their gender presentation to their gender identity.”
Disagreement over the equal-protection clause
On the 14th Amendment’s equal-protection clause, Kavanaugh said “states are not required to conduct an individual-by-individual comparison of the physical and athletic capabilities of all biological males” to satisfy the standard and sustain the laws.
He rejected the challengers’ arguments that transgender females who have taken puberty blockers or hormones be exempt from exclusion from female sports, saying courts are not well-equipped to decide such eligibility questions on a case-by-case basis.
The three liberal justices suggested that the equal-protection clause demanded that the transgender girl in the West Virginia case, referred to as B.P.J., be given the chance to prove she had no athletic advantage because she had taken puberty blockers.
“Because of the court’s decision today, West Virginia, and any other state actor, can deny B.P.J. and others like her these [sports] experiences simply because it thinks they have an inherent athletic advantage, even if the facts show that they do not,” said Sotomayor.
Federal policy and enforcement battles will continue
The high court’s ruling is likely to intensify, rather than resolve, federal and state conflicts over transgender students’ place in the nation’s schools.
The Title IX discussion is important because the Trump administration and others aggressively take the position that the statute actively prohibits states and schools from allowing transgender girls and women from participating in female sports.
President Donald Trump has issued an executive order to that effect, and his administration is suing some states and investigating school districts alleging that they’ve violated it.
The Supreme Court’s Title IX discussion may provide ammunition for those efforts, but it does not explicitly address whether states and schools must keep transgender girls and women off female teams.
So far, the administration’s reaction to the decision appears relatively measured.
The ruling “affirms the common sense right of states to prohibit men from competing in women’s sports, safeguard the integrity of female spaces, and ensure no woman faces discrimination on the basis of sex,” Secretary of Education Linda McMahon said in a statement. “For years, ideologues distorted Title IX to advance a radical transgender agenda, subjecting women to immeasurable harm. The Trump administration has fought to restore Title IX’s protections for women and girls since Day One.”
Political reactions highlight ongoing divide
The president, on Truth Social, said, “BIG WIN: The United States Supreme Court just RULED AGAINST MEN PLAYING IN WOMEN’S SPORTS. Wow! That takes that ridiculous situation off the table!!!”
West Virginia Attorney General JB McCuskey, a Republican who led the defense of his state’s law, appeared to acknowledge that the decision did not extend to requiring states to bar transgender athletes.
“There are a lot of people taking victory laps about this, especially people in Washington,” he said at a press conference after the ruling. “What the Supreme Court said today is that, in a 9-0 Title IX decision, in a 6-3 [equal-protection] decision with muted dissents, is that this is common sense, that this is good law. And I think all of our congressional leadership needs to take a long, hard look and say, do we have the courage to make this law for the entire country? Because I think our country’s yearning for that.”
The decision could lend momentum for further federal action, and it is definitely motivating groups that have battled transgender athletes’ sports participation to redouble their efforts.
“Blue states with boys on girls’ podiums … you’re next,” Kristen K. Waggoner, the CEO and chief counsel of Alliance Defending Freedom, a group that helped represent Idaho and West Virginia and has been active on the issue for years, said in a post on Instagram.
Sarah Parshall Perry, a former Education Department lawyer during President Trump’s first term and now vice president of Defending Education, a group which also works against transgender females’ participation, said during a July 1 Federalist Society webinar that the decision was limited and that “the Supreme Court did not go so far as to say states must separate scholastic athletics by biological sex, per Title IX.”
The ruling does not create a national ban
Opponents of the two states’ laws agreed that the court did not require states or schools to bar transgender athletes.
Joshua A. Block, the American Civil Liberties Union lawyer who represents the West Virginia transgender challenger, said the Supreme Court did not hold “that other states couldn’t make a different policy choice and allow transgender girls to participate with cisgender girls.”
“And it didn’t issue a sweeping ruling saying that under the Constitution, it’s perfectly fine to discriminate based on transgender status,” Block added in a remote session with reporters. “On each of those issues, the court wrote a narrow ruling that leaves the rest of the legal rights of transgender people where the court found them. And we are going to take heart from that.”
Sasha Buchert, a senior lawyer with Lambda Legal, an LGBTQ+ civil rights group, said the ruling “isn’t a national mandate to ban trans athletes everywhere. It’s a fight that’s going to continue, state by state, school by school.”
Officials in states that permit transgender girls to play suggested they would continue to do so.
“In Illinois, transgender students have the right to fully participate in school activities, including sports,” Attorney General Kwame Raoul, a Democrat, said in a written statement. “Nothing in [the] opinion prohibits states like Illinois from allowing student athletes to participate on teams consistent with their gender identity and pursuant to [Illinois High School Association] guidelines.”
Block said he thought all the states that were inclined to bar transgender girls from participation have already done so, as the state laws “really swept across the country like wildfire” in recent years.
“I think the focus is really going to shift to defending the lawfulness of inclusive policies from states that don’t want to ban transgender girls,” he said.
What might come next
Block said he expected that the U.S. Department of Education, “to the extent that it isn’t fully dismantled,” is going “to continue doing what they’ve been doing, which is pushing a completely lawless theory of Title IX, saying that it requires that transgender girls be separated from cisgender girls.”
Buchert said trans youth will continue to fight for their rights, and that she was heartened during oral arguments in the case in January to hear tones from at least some of the justices “that were a lot more human than we’ve heard in the past.”
That observation probably did not apply to Justice Clarence Thomas, who in his lone concurrence said, “Men and boys with gender dysphoria are not women or girls, even if they believe that they are.”
Kavanaugh, near the end of his majority opinion, stressed “one final point” that was more magnanimous. Most individuals involved in transgender sports disputes around the country are teenagers or in their early 20s, he observed.
“Those student-athletes want to play sports,” he said. “Their desire to compete warrants respect. No student-athlete on either side of the issue … deserves to be ostracized or vilified.”
