After nearly three and a half hours of argument last week in West Virginia v. B.P.J. and Little v. Hecox—consolidated cases challenging state laws barring transgender girls and women from female-designated sports teams—a majority of the Court appeared ready to uphold the bans, potentially through a relatively narrow ruling that nonetheless could have significant implications for how transgender status is treated under the Equal Protection Clause and Title IX. In preparation for the Court’s ruling, academic and athletic institutions should begin considering how their policies may need to adapt.
As a reminder: in Little, the plaintiff challenged Idaho’s Fairness in Women’s Sports Act under the Equal Protection Clause, arguing that the law’s categorical exclusion of trans women and girls constitutes an impermissible sex-based classification. In West Virginia v. B.P.J., a similar state law was challenged on both Equal Protection and Title IX grounds. Lower courts in both cases blocked enforcement of the laws.
Core Issues Raised at Oral Arguments
1. What level of constitutional scrutiny applies.
The first issue before the Court was whether the bans classify based on sex, triggering intermediate (heightened) scrutiny. The States argued rational-basis review applies because plaintiffs do not challenge sex-separated teams, but instead seek to change how “sex” is defined for purposes of those teams. Hecox and B.P.J., by contrast, contended the bans are inherently sex-based and therefore require intermediate scrutiny.
2. Are as-applied challenges valid?
The Justices next focused on whether, assuming intermediate scrutiny applies, plaintiffs may bring as-applied challenges (i.e., whether a law is unconstitutional as to them, even if valid on its face). Several Justices appeared skeptical, expressing concern that permitting such challenges would, in practice, collapse intermediate scrutiny into something closer to strict scrutiny.
3. What does “sex” mean under Title IX?
The arguments repeatedly returned to the meaning of “sex” in Title IX’s sex-separated athletics provision, added by the Javits Amendment, including what the term was understood to mean when enacted in the 1970s and how, if at all, Bostock v. Clayton County informs that inquiry. Although plaintiffs urged the Court not to define the term, several Justices questioned whether the Court could meaningfully resolve the case without doing so.
4. Does Title IX require exclusion of trans athletes from female-designated sports?
Although the Court acknowledged a near split nationwide—with 27 states blocking the participation of transgender girls and women from female-designated sports teams, and 23 declining to adopt such bans—key members appeared willing to defer on the question of whether Title IX proactively bars transgender girls and women from participating in female-designated sports, and instead allow it to make its way up from the lower courts.
How Far Will the Court Go?
Tuesday’s arguments made clear that the Court has several paths available to reach a decision. Both cases could be resolved on threshold grounds (Little because the athlete recently filed a suggestion of mootness based on her plans to abandon collegiate sports; B.P.J. because the decision below was issued at the summary judgment stage), but this is highly unlikely. Far more likely is that the Court’s conservative majority will rule that the classifications at issue are biological and meet the Equal Protection Clause’s requirement of being sufficiently tailored to meet the states’ important government interests, and that Title IX does not provide transgender girls and women the right to play on girls’ and women’s sports teams. A third possibility, which we see as unlikely, is that a majority will be convinced to issue a broad-based ruling on the definition of “sex” under Title IX and the Equal Protection Clause that goes beyond application to sports participation questions.
Given the Court’s questioning, institutions should review any policies addressing transgender participation in athletics. A narrow ruling that upholds state bans without resolving broader questions under Title IX or Bostock could create uncertainty for institutions in states without bans and leave room for future accommodations or shifts in NCAA policy.
For entities in Pennsylvania, it’s worth remembering that a challenge to the Pennsylvania Human Relations Commission’s application of anti-discrimination protections to transgender students is pending before the Commonwealth Court (*and for those interested in stories about lawyers’ use (or misuse) of AI, check out coverage of the oral argument in December, at which counsel for those challenging the PHRC were accused of submitting a brief brimming with artificial intelligence hallucinations*).
Members of our Higher Education Team listened to the arguments together and enjoyed digging into the legal nuances. If you’re interested in a slightly more in-depth analysis based on what we heard, feel free to read on.
Equal Protection Challenge
Central to the Equal Protection challenges before the Court is whether the bans classify on the basis of sex and therefore trigger intermediate (heightened) scrutiny. Several members of the Court signaled their views on the applicable standard of review last term. In concurring opinions in United States v. Skrmetti—where the Court upheld Tennessee’s ban on gender-affirming medical care for minors as a regulation of medical treatment rather than a sex-based classification—Justices Barrett, Thomas, and Alito each reasoned that laws classifying on the basis of transgender status do not warrant heightened scrutiny and are instead subject only to rational-basis review. By contrast, Justices Jackson, Kagan and Sotomayor dissented, reasoning that the law categorized on the basis of sex and therefore warranted intermediate scrutiny.
That divide left Justice Gorsuch and Chief Justice Roberts as the apparent pivotal votes on the standard-of-review question heading into Tuesday’s arguments. Justice Gorsuch authored Bostock,which construed discrimination “because of sex” under Title VII to include discrimination based on transgender status, and Chief Justice Roberts joined that opinion alongside the Court’s liberal wing.
At oral arguments on Tuesday, Justices Sotomayor, Jackson, and Kagan appeared inclined to adhere to the reasoning set out in Justice Sotomayor’s Skrmetti dissent and to side with Hecox and B.P.J. that intermediate scrutiny applies.
Justices Kagan and Roberts led the Court’s questioning on whether, assuming intermediate scrutiny applies, as-applied challenges are workable under that standard or whether permitting them would effectively collapse the analysis into strict scrutiny. The States, joined by the Trump Administration (appearing as a friend of the court), argued that it would. Counsel for Hecox countered that as-applied challenges remain meaningfully distinct because the State need only show an important interest and courts may impose evidentiary burdens not permitted under strict scrutiny.
Several Justices also probed the underlying classifications. Justice Alito pressed most directly on biological definitions. Justice Gorsuch—seemingly invoking footnote four of United States v. Carolene Products Co., which links heightened scrutiny to discrimination against “discrete and insular minorities”—questioned whether transgender status should be understood as a discrete classification in light of the long history of discrimination against transgender people.
Justice Kavanaugh spent little time on the standard of review, instead probing the substance of the States’ justifications. He emphasized the dramatic expansion of girls’ sports over the past fifty years and questioned whether allowing trans girls to compete could undermine those gains—asking about the significance of even a single transgender athlete displacing a spot that would otherwise go to someone assigned female at birth. The Justices’ questioning on scientific uncertainty also suggested differing views on whether the States could carry their burden under intermediate scrutiny. Justices Kagan and Kavanaugh noted the risks of categorical judgments in an area where the science is still developing. Justice Gorsuch likewise pressed on whether reliance on evolving or disputed science can satisfy intermediate scrutiny’s “substantial relationship” requirement. Justice Barrett expressed interest in whether the States’ reliance on physiological factors beyond testosterone—such as height and skeletal structure—could support the bans.
Taken together, the argument suggested a Court deeply skeptical of recognizing as-applied Equal Protection challenges that would require courts to redraw sex-based classifications case by case. With Justices Barrett, Alito, and Thomas having already rejected heightened scrutiny in Skrmetti, and with the Chief Justice and Justice Kavanaugh signaling concern about administrability, scientific uncertainty, and the preservation of sex-segregated sports, the argument left the clear impression that a majority of the Court is poised to reverse the lower courts and uphold the bans—either by applying rational-basis review or by concluding that the laws satisfy intermediate scrutiny.
Title IX
West Virginia argued that its Save Women’s Sports Act is constitutional because excluding biological males from girls’ and women’s teams is substantially related to ensuring fairness in female athletics. The Trump Administration agreed the law is constitutional and urged the Court to resolve the case under Title IX’s sex-based regulations, while petitioners countered that the law “takes a wrecking ball to the text of Title IX” and excludes B.P.J. from all athletic opportunity despite doing nothing to advance fairness.
A focal point of all parties’ arguments and the Justices’ inquiries was the fact that Title IX, through the Javits Amendment, explicitly permits sex-based separation in athletics. Enacted in 1975, the Javits Amendment directs that Title IX regulations “include, with respect to intercollegiate athletic activities, reasonable provisions considering the nature of particular sports.”
Justices Roberts and Alito pressed counsel for B.P.J. on the meaning of “sex,” under Title IX, and counsel for B.P.J. responded by declining to offer a definition and urging the Court not to adopt one either – a position that both Roberts and Alito were critical of.
Justice Kavanaugh questioned whether Title IX’s use of the term “sex” permits different interpretations across states and pressed the implications for California’s transgender-inclusive sports law if “sex” were limited to biological sex at birth. Counsel for B.P.J. again urged the Court not to define “sex” or hold that Title IX mandates exclusion of transgender girls and women from female-designated sports teams. The Trump administration maintained that, assuming the Court accepts its position—that the Javits amendment requires biological-based definitions of sex for sports—California and other states could and would argue that Title IX regulations still permit states to make exceptions for transgender athletes. Assuming the majority constrains itself by declining to issue a pronouncement on whether states can accommodate transgender athletes under Title IX, we suspect that any ruling upholding West Virginia and Idaho’s laws will be wielded in Court to make the argument that they cannot.
Bostock loomed over the questioning, particularly from Justices Gorsuch, Kavanaugh, Roberts, and Jackson. West Virginia and the Trump administration argued it does not apply because Title IX’s sex-based classifications, as understood in 1972, referred to sex at birth, and not transgender status.
