Supreme Court Rules Schools May Limit Participation in Women’s and Girls’ Sports Based on Biological Sex Under Title IX and Equal Protection Clause

In a heavily anticipated decision on transgender athletes, the U.S. Supreme Court held that schools may maintain women’s and girls’ sports based on biological sex, which the Court treated as sex identified at birth, consistent with Title IX and the Equal Protection Clause. The Court held that the Equal Protection Clause does not require schools to allow transgender women and girls to participate on women’s and girls’ sports teams, and that state laws limiting those teams to students identified female at birth satisfy intermediate scrutiny because they are substantially related to safety, competitive fairness, and related interests. The Court also held that “sex” in Title IX means “biological sex and not gender identity, particularly in the sports context.”

The Court expressly noted that the case does not present, and the opinion does not decide, “whether, under Title IX and the Equal Protection Clause, schools may allow biological males who identify as female to participate on girls’ and women’s sports teams.” Additionally, the decision holds that states may exclude transgender women and girls from women’s and girls’ sports—not that they must. In other words, the decision itself does not require schools or states to adopt such bans.

• Overview: The decision was the result of the consolidation of two separate cases, which were argued separately back in January. The first challenger was Lindsay Hecox, a transgender woman who wanted the opportunity to participate in Division I women’s track and cross-country team at Boise State University in Idaho. Hecox alleged violations of the Equal Protection Clause of the Fourteenth Amendment. The other challenger was Becky Pepper-Jackson (“B.P.J.”), a transgender girl. B.P.J. initially sought to participate on the girls’ cross-country and track-and-field teams in middle school, but is now in high school where the same policies apply. B.P.J. recently won the WV Class AAA state championship in girls' shot put and finished fourth in girls' discus. B.P.J. alleged violations of both Title IX and the Equal Protection Clause. Idaho and West Virginia are among 27 states that have passed laws that limit women’s and girls’ sports to students identified as female at birth. The judgment was 6-3 on the Equal Protection Clause issue and unanimous as to the rejection of B.P.J.’s Title IX claim, although Justices Sotomayor, Kagan, and Jackson concurred in the Title IX judgment on narrower grounds.
• Title IX: The Title IX claim was raised only by B.P.J. in the West Virginia case. Justice Kavanaugh explained that the purpose of Title IX and its Javits Amendment regulations, which were passed two years later, was to increase the participation of women and girls in sports and provide “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.” 34 CFR §§106.41(b),(c). The ordinary meaning of the term “sex” at the time of Title IX’s enactment in the early 1970s was, according to the Court, “biological sex and not gender identity, particularly in the sports context.” The Court concluded that the texts of Title IX, the Javits Amendment, and the implementing regulations “do not say (or even hint) that schools must allow certain biological males to participate in women’s and girls’ sports,” and that sex-separated sports teams based on biological sex are ”reasonable” given the inherent physical differences between the biological sexes. The Court also rejected B.P.J.'s reliance on Title VII and Bostock v. Clayton County, holding that the employment context addressed in Bostock is "vastly different" from the sports context at issue here.
  • Gorsuch Concurrence (Spending Clause): Justice Gorsuch wrote separately to emphasize that Title IX was enacted under the Spending Clause, which requires Congress to “clearly and unambiguously” specify the conditions funding recipients must follow. In his view, nothing in Title IX, the Javits Amendment, or the implementing regulations clearly alerts funding recipients that they are prohibited from restricting sports teams to students identified female at birth.
• Equal Protection: Both plaintiffs raised Equal Protection Clause challenges to their respective state laws, arguing that the states violated the Constitution by maintaining female sports teams for students identified female at birth. Central to the Court's analysis was the “undisputed proposition” that individuals the Court referred to as biological males generally possess inherent physical advantages in sports, including “height, weight, strength, speed, endurance, jumping ability, and the like.” See United States v. Virginia, 518 U.S. 515, 533 (1996) (“[p]hysical differences between men and women … are enduring.”). These differences, according to the Court, raised important safety and competitive-fairness concerns. Applying intermediate scrutiny, the Court held that the States’ sex-based classification—limiting women’s and girls’ sports to students identified female at birth—was substantially related to those interests.
  • Administrability and Individualized Assessments: The plaintiffs also raised an as-applied challenge, arguing that the laws were improper as applied to transgender athletes who were taking puberty blockers or hormones. The Court rejected this argument, reasoning that requiring individualized exemptions based on physical capacity would create “an almost impossible task for a judge to perform on an equitable basis” and could “fundamentally undermine women's and girls' sports.” The majority emphasized that “States are not required to conduct an individual-by-individual comparison of the physical and athletic capabilities of all biological males in order to satisfy intermediate scrutiny,” and that legislatures and schools—not courts—are “the more appropriate entities” to assess competing medical and scientific considerations.
• The Dissents: Justices Sotomayor, Kagan, and Jackson dissented on the Equal Protection issue, arguing that the majority should have demanded more justification from the states for the bans and allowed the district court to resolve outstanding factual disputes about whether transgender women and girls who have never experienced an endogenous male puberty and who receive gender-affirming treatment retain any athletic advantage. Justices Sotomayor, Kagan, and Jackson concurred with respect to the Title IX holding but on narrower grounds than the majority. Justice Sotomayor agreed that B.P.J.’s claim failed on B.P.J.’s concessions, but criticized the majority for holding—rather than merely assuming for the purposes of the case—that “sex” in Title IX means biological sex, or sex identified at birth, in the sports context. Justice Jackson wrote separately to argue that Title IX's definition of “sex” is more capacious and encompasses gender-based stereotyping, and that Title IX “makes room for individuals to live in the gender they choose.”

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Ben Aronson, an O’Melveny partner licensed to practice law in New York; Matthew R. Cowan, an O’Melveny partner licensed to practice law in California; Jennifer B. Sokoler, an O'Melveny partner licensed to practice law in New York; Eric Zabinski, an O'Melveny partner licensed to practice law in California; Anton Metlitsky, an O’Melveny partner licensed to practice law in New York and the District of Columbia; Natasha W. Teleanu, an O'Melveny partner licensed to practice law in New York; Meaghan VerGow, an O’Melveny partner licensed to practice law in the District of Columbia and New York; Jenn Beard, an O’Melveny counsel licensed to practice law in California; David Cohen, an O'Melveny counsel licensed to practice law in New York; Marni Robinow, an O’Melveny counsel licensed to practice law in California; and Emma Gomez, an O'Melveny associate licensed to practice law in New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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