SCOTUS: Schools Can Determine Eligibility for Female Sports Based on Biological Sex
This article was originally published by The Legal Intelligencer on August 5, 2026.
Transgender student athletes have been the subject of legal challenges in recent years, with 27 states passing laws that eligibility for female sports is based on biological sex. B. P. J. and Lindsay Hecox, two transgender athletes, brought claims under Title IX and the Equal Protection Clause of the Fourteenth Amendment to challenge their inability to play on the girls’ and women’s sports teams in West Virginia and Idaho. The Supreme Court recently issued its opinion in the consolidated case, West Virginia v. B. P. J., 690 U.S. ___ (2026). In a unanimous decision regarding Title IX, the Court held that Title IX allows institutions to use biological sex as a requirement for participation on female sports teams. As to the Equal Protection Clause, the Court reached the same result, though three Justices dissented from the majority opinion.
Lindsay Hecox
Hecox, a biological male who identifies as female, had gone through male puberty and began taking hormones in college. Hecox competed on the women’s club soccer team and had tried out for the women’s Division I track and cross country teams at Boise State University. In 2020, the Idaho legislature enacted the Fairness in Women’s Sports Act, which prevents biological males from playing on female sports teams. Hecox sued on Equal Protection grounds.
B.P.J.
B.P.J. was a biological male and started identifying as female in third grade. B. P. J. took puberty blockers and hormones and never went through male puberty. In 2021, the West Virginia legislature enacted the Save Women’s Sports Act, which prevents biological males from playing on female sports teams. This Act would have prevented B. P. J. from joining the female middle school cross-country and track and field teams. B. P. J. brought an as-applied challenge to the Act, based on the Equal Protection Clause and Title IX, arguing that the sex-based classification was unconstitutional as applied to a narrow group of biological males who identify as female and take hormones and puberty blockers.
Supreme Court Decision and Opinion
The key issue was whether “schools [may] determine eligibility for women’s and girls’ sports based on biological sex” under Title IX and the Equal Protection Clause. The Supreme Court answered yes. Justice Kavanaugh delivered the Court’s opinion, joined by Justices Thomas, Alito, Gorsuch and Barrett. Justice Sotomayor filed an opinion concurring in the judgment in part and dissenting in part, joined by Justices Kagan and Jackson. Justice Jackson filed an opinion concurring in the judgment in part and dissenting in part. Justices Sotomayor, Kagan and Jackson dissented based on the Equal Protection analysis, but all nine Justices agreed that Title IX allows institutions to determine eligibility for women’s and girls’ sports teams based on biological sex.
Title IX Claim
On the Title IX claim, which was raised only by B. P. J., the Court determined that schools can maintain women’s and girls’ sports teams for “biological females.” Title IX prohibits discrimination on the basis of sex in education programs or activities receiving federal funds. The 1974 Javits Amendment directed the then-Department of Health, Education and Welfare to promulgate regulations implementing Title IX’s prohibition on sex discrimination, and in the context of athletic activities, the regulations needed to include “reasonable provisions considering the nature of particular sports.” Those regulations to Title IX “required that schools provide ‘equal athletic opportunity for members of both sexes’ and authorized ‘separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.’” B. P. J. did not contest the definition of sex, and the Court declined to extend the definition of sex to include gender identity, instead determining that sex meant biological sex in the context and history of Title IX, the Javits Amendment and the Title IX regulations.
B.P.J. argued that the regulations providing for sex-separated sports were contrary to the Javits Amendment’s “reasonable” directive. However, the Court held that sex-separated sports are reasonable due to the “inherent physical differences between the sexes,” as well as safety and competitive fairness considerations. B. P. J. also argued that the Act violated Title IX by effectively excluding her from competing in any sports. However, the Court held that the “Title IX regulations guarantee ‘equal athletic opportunity.’ The regulations cannot and do not guarantee every student a spot on a team’s roster.” The Court further declined to apply Bostock v. Clayton County, 590 U.S. 644, 622 (2020), which held that prohibited sex discrimination under Title VII includes firing an employee based on their gender identity and sexual orientation. The Court reasoned that Title VII applies in employment contexts, which are “vastly different” from sports.
In Justice Jackson’s dissent, she argued that the Court could have left open the possibility that the definition of sex under Title IX was “more capacious.” She made the case that “Title IX makes room for individuals to live in the gender they choose; 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.”
Equal Protection Claim
The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” On the Equal Protection claims raised by both B.P.J. and Hecox, the Court determined that limiting participation on girls’ and women’s sports teams to biological females is a sex-based classification triggering intermediate scrutiny. To satisfy intermediate scrutiny, the states must set forth an important interest, and the sex-based classification must be substantially related to achieving those interests. West Virginia and Idaho asserted that safety and competitive fairness were important government interests. The Court agreed and determined that the laws were to achieving those interests. As a result, the Court held the Equal Protection Clause allows schools to base eligibility for women’s and girls’ sports on biological sex.
The Court rejected the argument that the Equal Protection claim should be as-applied because it would require courts to make judgments about which athletes could play on a case-by-case basis. “Especially in the sports context, moreover, an enormous practical and administrability problem would arise if courts suddenly had to make such individualized exemptions.” The main contentions in the dissenting opinions were due to unresolved factual disputes and disagreement about the level of scrutiny applied.
Takeaways
There are specific topics this decision does not address. The Court explicitly did not address whether schools may allow transgender girls to participate on girls’ and women’s sports teams under Title IX and the Equal Protection Clause. That question is currently being litigated in lower courts, as is Executive Order 14201, titled “Keeping Men Out of Women’s Sports.” United States v. Minnesota Dep’t of Educ., No. 26-cv-02078 (D. Minn. Mar. 30, 2026) (raising Title IX claims about whether institutions can allow “trans-identifying males” to participate in female sports); Bd. of Trs. of the Cal. State Univ. v. U.S. Dep’t of Educ., No. 26-cv-01970 (N.D. Cal. Mar. 6, 2026) (raising Administrative Procedure Act and constitutional claims over threatened federal funds after OCR found Title IX violation for allowing transgender student to play on woman’s volleyball team); Tirrell v. Edelblut, No. 1:24-cv-00251 (D.N.H. Feb. 12, 2025) (challenging Executive Order 14201 on Equal Protection grounds, among others). Similarly, the Court stated that “nothing in this opinion should be interpreted to address or limit participation by biological females on male or co-ed sports teams.”
The Court gave a history lesson on the “landmark law” of Title IX, how it “transformed American sports and American life” because it promoted equal opportunity for female student-athletes and led to the explosion of women’s and girls’ sports since its enactment. If schools had one team for each sport that was open to male and female athletes, it would deny equal opportunity to female athletes, given the “inherent physical differences relevant to athletic performance.” The Court discussed the significant safety risks to force female athletes to compete against males, as well as the issue of undermining competitive fairness. By deciding unanimously on the Title IX claim, the Court issued a strong statement about protecting the history behind Title IX and its importance in promoting equal opportunities for female student athletes.
Ashling Ehrhardt is a partner at Cohen Seglias in the Philadelphia office. As chair of the firm’s Title IX Group, Ashling empowers universities and students to navigate Title IX successfully. She combines her legal experience with strong writing and interpersonal skills to work with institutions of all shapes and sizes, from small liberal arts colleges to large public universities by serving as an investigator, advisor and decision-maker. She can be reached at aehrhardt@cohenseglias.com and 267.238.4761.
Maiya Groff is a summer associate at Cohen Seglias in the Philadelphia office. Groff is a rising 3L at Temple University James E. Beasley School of Law.
Reprinted with permission from the August 05, 2025 edition of “The Legal Intelligencer” © 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.
