Understanding the U.S. Supreme Court's Decision on Transgender Athletes
On June 30, the United States Supreme Court in West Virginia et al. v. B.P.J., held that under Title IX and the Equal Protection Clause of the Fourteenth Amendment, schools may maintain women’s and girls’ sports teams for biological females.
The decision clarifies the purpose and limits of Title IX in the context of school sports and paves the way for states, 27 and growing, to enact laws that maintain female sports for biological females. The decision leaves open whether schools may nevertheless allow biological males who identify as female to participate on women’s and girls’ sports team, which is subject to other pending lawsuits and does not disturb the Bostock v. Clayton County decision holding that Title VII forbids the firing of an employee for being gay or transgender.
Background
The respondent, B.P.J. identifies as a female and is a biological male and sought to participate on girls’ cross country and track and field teams at school. Examining Virginia’s Save Women’s Sports Act and Idaho’s Fairness in Women’s Sports Act, the Supreme Court underscored that the purpose and history of Title IX is to promote equal opportunity for female student-athletes and to authorize schools to permit gender specific sports participation.
The court found that the term “sex” in Title IX statute and regulation meant biological sex and not gender identify in the sports context. According to the court, Title IX allowed separate sports teams based upon sex precisely because of the inherent physical differences between biological men and women. The court found that there was an undisputed proposition that biological males generally possess inherent physical advantages to biological females in sports including in height, weight, strength, speed, endurance, jumping ability. These distinctions of biological sex, according to the court, raise safety and competitive fairness concerns when females are forced to compete with males.
As to the Equal Protection Clause, applying the intermediate scrutiny test for sex-based classifications, the court found that limiting women’s and girls’ sports teams for biological females was substantially related to achieving an important government objective of maintaining safety and competitive fairness for biological females. The court further rejected B.P.J.’s request for an exception for biological males who identify as female and have taken puberty blockers or hormones, noting that neither Title IX nor the Equal Protection Clause required schools to conduct an individual-by-individual comparison of the physical and athletic capabilities of biological males.
Please contact Rebecca Sha or any member of Phelps’ Education or Sports teams with questions or for advice and guidance.
