West Virginia v. B.P.J.

Justice Sotomayor, joined by Justices Kagan and Jackson, agreed that B. P. J.'s Title IX claim fails but strongly dissented from the majority's resolution of the equal protection claim. She argued that the majority prematurely decided the case without allowing the lower courts to resolve critical factual disputes — specifically, whether transgender girls who have never experienced male puberty and who receive gender-affirming treatment actually retain any athletic advantage over cisgender girls. She contended that under the Court's own heightened scrutiny precedents (such as Caban v. Mohammed and United States v. Virginia), it matters whether a sex classification is overbroad as applied to a discrete, identifiable subclass for whom the state's justifications do not hold true.

Sotomayor criticized the majority for applying a weakened form of heightened scrutiny that effectively functions as rational basis review, for citing extra-record evidence (such as recent IOC policies) rather than relying on the factual record developed below, and for showing sympathy only to cisgender female athletes while disregarding the real harms inflicted on transgender students like B. P. J. She emphasized that B. P. J. is a teenager who simply wants to play sports with other girls, and that the Court should have allowed the case to return to the trial court for the factual development that the Equal Protection Clause demands before reaching a final judgment.

Justice Thomas joined the majority opinion in full and wrote separately to make two points. First, he argued that transgender status is not a suspect classification warranting heightened equal protection scrutiny, because gender dysphoria is a mutable mental condition subject to psychiatric treatment rather than an immutable characteristic like race or sex. He stated that legislatures have many rational bases for keeping biological males out of teams and spaces reserved for women. Second, he emphasized that biological males with gender dysphoria are not women or girls, asserting that sex is an immutable, binary biological characteristic, and that using language to suggest otherwise obscures reality.

Justice Gorsuch joined the majority opinion and wrote separately to add two observations about Title IX. First, he emphasized that Title IX was enacted under Congress's Spending Clause power, meaning its conditions must be clearly and unambiguously stated for funding recipients to be bound by them. He argued that nothing in Title IX clearly tells schools they cannot restrict sports teams to biological females, pointing to the statute's text, its allowance of sex-separated living facilities, and the longstanding regulations permitting separate teams for each sex.

Second, Justice Gorsuch explained why the Court's earlier decision in Bostock v. Clayton County (which held that firing someone for being transgender violates Title VII's ban on sex discrimination in employment) supports rather than undermines today's ruling. He noted that Bostock addressed whether firing someone counts as unlawful discrimination — a question everyone agreed it did if motivated by sex. The question here is different: whether maintaining single-sex sports teams constitutes discrimination at all. Title IX, unlike Title VII in the employment context, expressly contemplates and permits sex-separated teams, so sponsoring a girls' team limited to biological females is not unlawful discrimination under the statute.

Justice Alito filed a concurring opinion. Based on prior positions referenced in the majority opinion, Justice Alito has maintained that classifications based on transgender status or gender identity should receive only deferential rational basis review rather than heightened scrutiny. His concurrence aligned with the majority's conclusion that the challenged state laws are constitutionally permissible.