West Virginia v. B.P.J.
Whether a state law requiring students to play on sports teams matching their biological sex violates Title IX or the Equal Protection Clause when applied to transgender students.
Background & Facts
West Virginia enacted a law requiring students to participate on school sports teams corresponding to their biological sex at birth, effectively barring transgender girls from competing on girls' teams. B.P.J., an 11-year-old transgender girl, wanted to play on her middle school's girls' sports teams after transitioning. She had undergone puberty blockers and hormone therapy, and her attorneys argued she had no physiological advantage over cisgender girls.
The district court ruled in favor of West Virginia on both Title IX and Equal Protection grounds. The Fourth Circuit reversed on Title IX, finding a violation, but remanded the Equal Protection claim for further proceedings. The Fourth Circuit's Title IX ruling was unusual because it held that even if B.P.J. had a physical advantage, excluding her still violated Title IX — a position that even B.P.J.'s own lawyers did not defend before the Supreme Court.
The case reached the Supreme Court with 26 other states having similar laws. The United States filed as amicus curiae supporting West Virginia. Both sides agreed that Title IX permits sex-separated sports teams; the dispute centered on whether 'sex' in that context means biological sex and whether the law unconstitutionally discriminates against transgender students.
Why This Case Matters
This is the first Supreme Court case directly addressing whether transgender students have a right under federal law to play on sports teams matching their gender identity. The outcome could affect laws in at least 26 states that have enacted similar restrictions. The case sits at the intersection of Title IX's protections against sex discrimination, the meaning of 'sex' in federal law, and evolving scientific understanding of gender identity and athletic performance.
The case also has significant implications beyond sports. The Justices repeatedly probed whether a ruling could affect other sex-separated contexts like locker rooms, classrooms, and chess clubs. Both sides urged the Court to write a narrow opinion — West Virginia wanted to limit the ruling to athletics under the Javits Amendment, while B.P.J.'s counsel urged the Court not to adopt a national definition of 'sex' that could constrain states choosing more inclusive policies. The case could also influence how intermediate scrutiny applies in as-applied challenges to sex-based classifications.
The Arguments
West Virginia's law simply preserves the longstanding structure of sex-separated sports teams based on biological sex, which Title IX and its implementing regulations expressly authorize. The law does not classify based on transgender status; it is indifferent to gender identity because sports outcomes are indifferent to gender identity.
- Title IX's text, the Javits Amendment, and longstanding regulations all expressly authorize sex-separated teams based on biological sex as understood in 1972 and 1974
- The law is a sex classification, not a transgender classification — it applies to all students based on biological sex regardless of gender identity
- Bostock does not control because the law classifies on biological sex, not transgender status, similar to Skrmetti
- Under either rational basis or intermediate scrutiny, the law satisfies equal protection because biological sex differences in athletics are real, enduring, and obvious
Key Exchanges with Justices
Justice Kavanaugh
“Can you explain the relevance of the Javits Amendment to distinguishing sports from hypotheticals about chess clubs and classrooms?”
Williams seized on this to argue the Court's task is narrow — Congress specifically authorized athletic regulations, making sports uniquely different from other contexts.
Justice Jackson
“Doesn't the law operate differently for cisgender women and transgender women — cisgender women can play on teams matching their gender identity but transgender women cannot?”
Williams resisted, calling it a disparate impact argument not supported by Title IX, but the exchange revealed the core analytical tension in the case.
Justice Gorsuch
“You argue 'on the basis of' means 'solely because of,' but we've long said 'because of' means but-for causation, and isn't the distinction here solely because of sex anyway?”
Williams conceded the case doesn't turn on the 'solely' argument, effectively abandoning one of the petitioner's textual claims.
The simplest resolution is that the unchallenged regulations authorize sex-separated teams, 'sex' in those regulations obviously means biological sex, and therefore circulating testosterone levels are legally irrelevant — the factual dispute about competitive advantage doesn't matter.
- The regulations use 'sex' to mean biological sex in the reproductive biology sense, not circulating hormone levels
- The law classifies on biological sex, not transgender status, so Bostock does not apply — just as Skrmetti classified on age and medical treatment
- Transgender students are not excluded from boys' teams; they are choosing not to participate on boys' teams
- The Court should not invoke the Spending Clause here because its scope in Title IX is complicated and unnecessary to resolve
Key Exchanges with Justices
Justice Barrett
“Because of the Javits Amendment and the other side's concession that Title IX permits sex-separated sports, can we avoid your 'similarly situated' argument entirely?”
Mooppan agreed, confirming the Court can resolve the case narrowly through the regulations without adopting the broader similarly situated framework.
Justice Kavanaugh
“If we say sex in Title IX is biological sex, how would California still prevail in future cases where it allows transgender women to compete?”
Mooppan argued those states could claim the regs permit but don't require separation, suggesting the ruling need not predetermine that issue.
Justice Kagan
“Are there arguments we should be careful about that would influence the outcome of cases involving states that don't prohibit transgender women from participating?”
Mooppan confirmed the narrow regulatory argument would not influence those other cases, giving the Court a path to decide without broader consequences.
West Virginia's law treats B.P.J. differently from other girls on the basis of sex, denying her all athletic opportunity while she has no physiological advantage over cisgender girls. The case should be resolved on the facts — if there is no competitive advantage, there is no basis to exclude her.
- B.P.J. went through female hormonal puberty with puberty blockers and has no sex-based physiological advantage over cisgender girls
- The Javits Amendment requires 'reasonable' regulations providing equal athletic opportunity — categorical exclusion of someone with no advantage is unreasonable
- This is an as-applied claim analogous to Caban: the classification may be valid generally but invalid as applied to this discrete group
- The Court should not adopt a national definition of 'sex' and should allow states flexibility to take different approaches
Key Exchanges with Justices
Justice Kagan
“Does your argument depend on B.P.J. not having a competitive advantage?”
Block conceded that if B.P.J. had an advantage, they should lose — making a strong pitch for remand on the factual question rather than a broad legal ruling.
Justice Barrett
“Why can't a cisgender boy who can't make the boys' team and has no competitive advantage play on the girls' team under your theory?”
Block distinguished the cases by saying the purpose of separate teams is to control for sex-based variables, not to sort by ability — revealing that gender identity does play a role in the theory.
Justice Gorsuch
“The Javits Amendment changed Title IX for sports and we have 50-plus-year-old regulations — why doesn't that make this very different from Title VII?”
Block agreed that the Javits Amendment is what makes this different, expressing willingness to have a sports-specific ruling rather than a broad holding about Bostock and Title IX.
Precedent Cases Cited
Bostock v. Clayton County
590 U.S. 644
Central to the debate over whether discrimination based on transgender status is inherently discrimination 'on the basis of sex,' and whether Bostock's Title VII reasoning extends to Title IX.
United States v. Virginia (VMI)
Cited by the U.S. for the proposition that sex classifications are generally impermissible because men and women are generally similarly situated, except for 'real, enduring' biological differences.
Caban v. Mohammed
441 U.S. 380
Cited by respondent as precedent for as-applied equal protection challenges to sex classifications — arguing a classification valid for most people can be invalid as applied to a discrete subset.
United States v. Skrmetti
Cited by both West Virginia and the U.S. for the proposition that a law classifying on biological sex and medical treatment is not a transgender classification, and that legislatures have deference in areas of evolving science.
Burlington Northern & Santa Fe Railway Co. v. White
548 U.S. 53
Cited by respondent for the principle that some actions not harmful to most people may be materially harmful to particular individuals, supporting the argument that the sex classification uniquely harms transgender students.
Nguyen v. INS
533 U.S. 53
Cited by respondent to distinguish categorical bans from procedural requirements — Nguyen upheld sex-based citizenship rules because they provided an opportunity to demonstrate the relevant relationship, unlike the categorical ban here.
Davis v. Monroe County Board of Education
526 U.S. 629
Cited for the definition of 'program or activity' in Title IX and for the principle that constructive denials of educational access, not just outright denials, can violate Title IX.
Frontiero v. Richardson
411 U.S. 677
Cited by West Virginia for the Court's understanding of 'sex' as focused on biological characteristics like reproductive function, supporting the argument that sex means biological sex.