It is rare to find cases rising to the Supreme Court level where the justices are asked, “Who should be allowed to play on competitive women’s and girls’ sports teams?” Just decades ago, the answer would have been easy, hardly requiring the nation’s highest court to provide an answer. Women and girls play on sports teams for women and girls. But the question posed by two cases — West Virginia v. B.P. J. and Little v. Hecox — turned out to be more complicated. The two litigants, both biological males but identifying as women, want the right to play on women’s teams and are challenging state laws in West Virginia and Idaho that prohibit them from doing so.
Before considering those two decisions, let’s first take a glance back at women’s sports.
It is fair to say that American women and girls were discouraged from participating in competitive sports for a good portion of our nation’s history. The barriers were a combination of cultural constraints and physical education theories about what sports women could play, given their supposed physical fragility. These restrictive views had staying power because, as late as the early 1960s, many U.S. colleges had full-fledged intercollegiate sports programs for men but offered women students only a paltry menu of intramural sports. As Justice Brett Kavanaugh writes for the Supreme Court, participation in sports, then, was “badly skewed” in favor of men’s sports.
But times changed, and certain women’s athletic associations began to advocate for a complete array of competitive women’s intercollegiate sports, with the best example being the Division of Girls and Women in Sports (DGWS), founded in 1957.
In 1972, Congress passed Title IX of the Civil Rights Act, which gave the already developing women’s sports initiative a legal shot in the arm. High schools and colleges that were receiving federal aid (which was most of them) were compelled by law to expand sports offerings for women to be more in parity with men’s programs or risk losing federal monies or having to defend against claims of sex discrimination. Title IX, coupled with changing attitudes about women in sports, led to a boom in athletic opportunities for women and girls.
And yet, after decades of overcoming a variety of stubborn historic barriers to their participation in sports, women and girls today unfortunately face a new unexpected challenge — namely, transgender women, who are biological men, identifying as women and invading their courts, fields, tracks, and pools.
Dr. Carl Trueman puts it clearly in his The Rise and Triumph of the Modern Self, where he notes that these individuals are men who assert that they are “women trapped in a man’s body.” Trueman says that this is a “view of personhood that almost completely dispenses with the idea of any authority beyond the personal…. I think I am a woman therefore I am a woman.” This view usually begins as a private discontent with one’s birth sex, a disorder commonly called “gender dysphoria.” But in the last decade and a half, the transgender movement has morphed into an unyielding and very public force that includes demands by trans women that they be accepted onto women’s and girls’ sports teams composed of biologically female players. (RELATED: Trump’s Ban on Males in Female Sports: What It Does, Why It’s Justified, and the Left’s Outrage.)
These demands continue to occur despite clearly established science showing that these trans athletes retain the physical and physiological advantages of males over their teammates and opponents who are female. The result is that trans athletes dominate the sport they enter. Perhaps the best-known case was transgender swimmer Lia Thomas, a biological male, who swam as a “woman” for the University of Pennsylvania and who set records and became an NCAA champion.
Some state legislatures, succumbing to transgender ideology and pressure, have simply allowed biological males identifying as women to compete on women’s and girls’ teams.
Other states, 27 as of today, seeing the unfairness of what was happening and receiving complaints from parents and female athletes, responded with laws like those of West Virginia and Idaho. These two pieces of legislation — the West Virginia Save Women’s Sports Act and the Idaho Fairness in Women’s Sport Act — banned transgender women or girls (biological men or boys) from participating on women’s or girls’ sports teams in public secondary schools and colleges, recognizing the inherent physiological differences between males and females as a legitimate basis for separate-sex sports.
The West Virginia act was challenged by a person named in court documents as “B.P.J.” (a minor, presented anonymously by initials). This person was a transgender girl who, though biologically a boy, had identified as a girl for some years and received hormone and other therapy to delay puberty. The Idaho Act was challenged by Lindsay Hecox, also a biological male identifying as a woman and desiring to participate as a female in women’s track and other sports at Boise State University. Their lawsuits advanced through the courts to the U.S. Supreme Court.
B.P.J.’s case against West Virginia raised a Title IX issue by claiming that the language in that statute prohibiting “discrimination based upon sex” in educational programs applied to her as a transgender woman athlete since she was being excluded from sports participation due to her “sex.” The Court majority rejected that claim outright. First, it said that the term “sex” used in 1972 and later in amendments to that title clearly referred to “biological sex,” not “gender identity.” The regulations under Title IX cannot be plausibly read any other way. Justice Kavanaugh wrote, “the texts of Title IX, the Javits Amendments, and the Title IX regulations do not say (or even hint) that schools must allow certain biological males to participate in women’s or girls’ sports.” Given the inherent differences between males and females, separate sports for biological males and biological females are reasonable, specifically to reduce the risk of physical injury and ensure fair competition.
Another argument made by B.P.J. asserted that the definition of “sex” in Title IX should be based upon the decision in Bostock v. Clayton County, where the Court interpreted the prohibition against sex discrimination in a Title VII employment case to include dismissal for “sexual orientation.” The Court here simply says that the statute being interpreted — Title IX versus Title VII — and the factual situation — women’s sports versus employment sports — are different enough to make Bostock irrelevant.
Both parties, B.P.J. and Hecox, also made an argument under the 14th Amendment’s Equal Protection Clause. The Court’s equal protection jurisprudence recognizes that when a state passes a law that uses a sexual classification, it triggers a level of the Court’s inquiry called “intermediate scrutiny.” In other words, the Court reviews (scrutinizes) the sexual classification by asking if the classification is “substantially related to achieving an important governmental interest.” If it is, the sexual classification is allowed under the Equal Protection Clause. If not, the classification is unconstitutional.
Here, the Court finds that the difference between biological men and women in terms of height, weight, strength, and speed leads the states to protect the “safety for women participants, and preservation for female athletes of the opportunity to fairly compete and succeed.” These are important interests that are substantially related to the requirement of separate-sex sports; that is, those limited in each case to biological men or biological women. Therefore, the equal protection claim fails. Consequently, the laws banning biological men, though they may claim to be women, from women’s and girls’ sports are upheld.
With these decisions, the decades of real progress for women and girls in sports that have been achieved will be preserved for those in states with similar laws in place. The result will be otherwise in states without legislative protection. Unhappily, women and girls there will find themselves in competition with “women and girls” who are really biological men and boys, and whose physical advantages will distort the competitive outcomes of women’s sports in those states.
Kavanaugh closes the opinion of the Court in an unconventional way with what could properly be described as a heartfelt plea to women and girls who engage in athletic competition and a call for civility and kindness. Here are some segments of his remarks concerning female athletes:
“They [women and girls who play sports] spend extraordinary time and effort to train in the heat and in the cold, to work out early in the morning and late at night, to get a little faster, to become a little stronger, to jump a little higher, to shoot a little better … to make a lonely journey back from an ACL tear … to start, to win the game, to win a championship, to be all tournament … to endure losses with grace, to lift up their teammates, and to respect opponents who have beaten them fairly and squarely. Whether the star of the team or the last player on the bench, they form lifelong friendships and lifetime memories. They savor their athletic accomplishments and cherish them for years, even decades, after their playing days are over.”
Kavanaugh continues, “In so ruling, we emphasize one last point. Most of the biological female and transgender student athletes who are involved in transgender sports disputes around the country are teenagers or in their early twenties. Those student-athletes want to play sports. Their desire to compete warrants respect. No student-athlete, whether a biological female or transgender, deserves to be ostracized or vilified.”
Well put, Mr. Justice.
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