SCOTUS ruled Tuesday in a 6-3 decision that states may separate athletic competition based on biological sex, consistent with both Title IX and the Equal Protection Clause.
NRB members, including Alliance Defending Freedom (ADF) and the Pacific Justice Institute (PJI), supported states with amicus briefs and legal counsel throughout the hearings.
“This is a victory for every girl who refused to stay quiet in the face of injustice. Men cannot be women, and no drug erases the male athletic advantage,” said Kristen Waggoner, CEO, president, and chief counsel at ADF.
The Supreme Court’s decision held that the Equal Protection Clause and Title IX do not prohibit states from basing athletic competitions on biological sex. The decision does not create a federal-level ban of transgender participation in sports. Instead, protections depend on state legislation.
“Today’s decision is a tremendous victory for women and girls across America,” said Brad Dacus, founder and president of PJI. “By upholding these laws, the Supreme Court has affirmed that states may take reasonable steps to preserve fairness, protect athlete safety, and safeguard opportunities for female competitors.”
For the 27 states which currently have legislation to maintain female sports for biological females, the decision confirms they may continue to reserve female athletic competitions for biological females. However, the ruling does not require the other 23 states to adopt similar statues.
But sex-based athletic opportunities should not depend on an individual’s zip code.
While this decision secures an important constitutional victory, advocates must ride the momentum of this victory to secure codified protections for female athletes in every state. A strong alliance of advocacy, legal support, and social movement is needed to keep sports safe for women and enact consistent action when laws are violated.
Congress could act to create a uniform national standard including a biological definition of sex applied to athletic competition. Congressmen in the 23 states currently lacking protections for women’s sports could follow Idaho and the other states in enacting legislation to protect women and girls in the athletic area.
“Policies that ignore biological truth hurt people,” said Waggoner. “After today’s decision, the 23 states still on the sidelines have run out of excuses. Protect women’s sports. Our girls have waited long enough.”
The Supreme Court’s decision consolidated two cases, West Virginia v. B.P.J. and Little v. Hecox, both of which were appeals from transgender athletes (biological males) protesting state laws banning them from competing in women’s sports.
West Virginia v. B.P.J. challenged the “Save Women’s Sports Act” (West Virginia H.B. 3293), the which prevents biological males from participating in contact or competitive sports designated for female students. The respondent, Becky Pepper-Jackson, a biological male who transitioned with hormone therapy before puberty, sought to participate in girls’ division of track and field and cross-country at Bridgeport High School.
The case of Little v. Hecox asked the court to consider whether an Idaho law limiting participation in women’s sports to biological females violated the Constitution. Lindsay Hecox, a biological male, sought to compete on the women’s track and cross-country teams at Boise State University, consistent with her self-assigned gender identity.
Both cases presented arguments on the grounds of Title IX and the Equal Protection Clause. In both cases, lower courts suspended enforcement of the laws protecting women while the cases were under consideration. In the case of West Virginia, Pepper-Jackson competed in girl’s divisions of track and field, winning multiple events against female competitors.
The Supreme Court determined that in both cases, state laws fell within the Constitution and did not violate Title IX regulations.
The Court reasoned that gender identity did not exist as a legal category when Title IX was enacted in the 1970s. The Court added that “the Title IX 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.”
For the Equal Protection Clause, preceding interpretations find sex-based classifications “permissible only when the classification is ‘substantially related’ to achieving an ‘important’ government objective.” The Court agreed with the states that “the interests of safety and competitive fairness are important interests for purposes of equal protection analysis.”
Dissenters argued that the Court’s decision was a blanket solution to what many view as a nuanced subject. Some LGBTQ advocates want the courts to develop unique standards for different sports, age groups, and transgender types. For example, Pepper-Jackson in West Virginia took hormone blockers before puberty, limiting the development of male physical advantages.
However, studies show that no amount of hormone suppression or surgery can dissolve the differences between men and women present from birth, including bone density and structure, lung capacity, heart size, and muscle mass, all of which translate to speed, endurance, and strength for an outsized athletic advantage.
SCOTUS’s decision confirmed what Congress understood more than 50 years ago when Title IX became law: meaningful equal opportunity for women requires sex-based distinctions.