The Supreme Court heard oral arguments this morning in two closely watched cases addressing whether states may bar biological males from participating in girls’ and women’s sports. While the Court did not indicate how it will ultimately rule, the questioning suggested that a majority of the justices are inclined to uphold the challenged state laws.
The cases arrive at the Court through different procedural paths. In West Virginia v. B.P.J., the U.S. Court of Appeals for the Fourth Circuit blocked a West Virginia law, holding that it likely violated both the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Civil Rights Act of 1964. Title IX, enacted in 1972, prohibits discrimination “on the basis of sex” in federally funded education programs, including school athletics.
By contrast, in Little v. Hecox, the U.S. Court of Appeals for the Ninth Circuit invalidated Idaho’s law solely on constitutional grounds, without reaching the Title IX question. That case is further complicated by the plaintiff’s effort to have the dispute declared moot at the Supreme Court level, a move widely viewed as strategic. Even if successful, such a maneuver would not resolve the West Virginia case, making it unlikely that the Court will avoid addressing the broader legal issue.
The challengers’ arguments appeared shaped by the Court’s recent decision in United States v. Skrmetti, which signaled skepticism toward claims that laws distinguishing on the basis of gender identity should automatically trigger the highest level of constitutional scrutiny. During argument, Kathleen Hartnett of the American Civil Liberties Union, representing the challengers in both cases, did not press the claim that transgender status should be treated as a “suspect classification” under equal protection doctrine. Several justices who typically align with the Court’s liberal wing also did not pursue that theory.
Instead, the challengers focused on narrower arguments, contending that the laws are unconstitutional as applied to certain transgender athletes, particularly those who meet specific criteria such as suppressed testosterone levels. This approach shifted much of the discussion away from the broader philosophical debate over sex-based classifications in sports and toward a technical examination of constitutional doctrine—specifically, the difference between “facial” challenges to a law and “as-applied” challenges.
A facial challenge asserts that a law is inherently unconstitutional in all circumstances. An as-applied challenge argues that a law, while generally valid, is unconstitutional in its application to a particular individual or set of facts. Several justices noted that Supreme Court precedent on the availability of as-applied challenges in sex discrimination cases is limited. Justice Elena Kagan observed that the Court’s case law in this area is “surprisingly sparse.”
One of the most notable exchanges occurred during questioning by Justice Samuel Alito, who pressed Hartnett on how courts can evaluate claims of sex discrimination without a clear definition of “sex.” In response to a series of questions about whether schools may maintain separate boys’ and girls’ teams, Hartnett acknowledged that such teams are permissible but said she did not have a definition of what constitutes a man or a woman for equal protection purposes. When asked whether a school could exclude a student who is biologically male and has not undergone medical transition but identifies as female, Hartnett answered that the school could do so.
Several justices appeared concerned that the challengers’ proposed alternative—requiring transgender student-athletes to provide ongoing medical documentation, such as proof of suppressed testosterone—could be more intrusive than sex-based classifications. Justice Amy Coney Barrett suggested that such a regime might impose greater burdens on students than the existing laws. Barrett previously joined an opinion arguing that transgender status should not be treated as a suspect classification under the Constitution.
Justice Brett Kavanaugh framed the issue more narrowly, questioning whether the Constitution requires federal courts to intervene in disputes over the structure of school sports. While he praised advances in women’s athletics, he pressed state attorneys on whether they were claiming that the Constitution mandates sex-separated sports teams. Both states’ lawyers stepped back from that assertion, though West Virginia continues to advance it in other litigation.
A recurring challenge for the plaintiffs was their contention that laws affecting the vast majority of students in a nondiscriminatory way could still violate constitutional standards when applied to a small subset of transgender athletes. Under existing doctrine, sex-based classifications are evaluated under “intermediate scrutiny,” which requires that a law be substantially related to an important government interest but does not demand perfect tailoring. Chief Justice John Roberts questioned whether the challengers’ theory would effectively transform intermediate scrutiny into strict scrutiny, remarking, “That sounds an awful lot like strict scrutiny.”
When Justice Ketanji Brown Jackson suggested that states could simply create exceptions to accommodate transgender athletes, West Virginia’s attorney responded that determining whether and how to create such exceptions is precisely what constitutional tailoring entails.
Although no decision was issued from the bench, the tenor of the arguments suggested significant skepticism toward the challengers’ claims. A ruling is expected later in the Court’s term and could have broad implications for school athletics, Title IX enforcement, and the constitutional treatment of sex-based classifications nationwide.
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