At the end of June, the Supreme Court of the United States (the Court) issued decisions in West Virginia v. B.P.J. and Little, Governor of Idaho v. Hecox. Both cases involved transgender students who challenged state laws that limited their ability to play on female sports teams. The Court upheld both the West Virginia and Idaho laws, affirming the ability of states to limit access to female sports teams based on biological sex.

As phrased by the Court, the case considered “whether, under Title IX and the Equal Protection Clause of the Fourteenth Amendment, schools may maintain women’s and girls’ sports teams for biological females, i.e., may schools determine eligibility for female sports based on biological sex?” In West Virginia, B.P.J. was not permitted to run on the middle school girls’ cross-country and track-and-field teams due to a West Virginia state law, the Save Women’s Sports Act, that prohibits male students from playing on female sports teams, and specifies that sex is determined by biology, without consideration for gender identity. Consequently, B.P.J., who was born biologically male but has identified as female since a young age, was not able to participate on female sports teams, notwithstanding the fact that she socially transitioned to female in third grade, began taking puberty blockers soon after, and then started taking hormones in sixth grade.

Similarly, Hecox was a college student at Boise State University who participated in women’s club soccer and tried out for the women’s cross country and track teams. The Idaho Legislature passed the Fairness in Women’s Sports Act in 2020, which states that sex is determined by biology and prohibits male students from participating on female sports teams. This prevented Hecox, who was born a biological male but identifies as female and had been taking hormones in college, from continuing to play on her preferred teams.

In response to the laws and the impacts on their ability to play on female sports teams, B.P.J. and Hecox sued their respective states. Each case was eventually appealed to the Supreme Court where review was granted, and the cases were considered together. The Court’s analysis is split into two primary considerations: Title IX arguments, made by B.P.J. only, and Equal Protection Clause arguments raised by both students.

The Court began its analysis with Title IX, framing the specific question as “whether Title IX permits schools to maintain women’s and girls’ sports for biological females.” The Court determined that none of B.P.J.’s arguments hold legal weight, and Title IX does not provide protections for transgender female students. Based on the text of the statute and its implementing regulations, the Court answered this question in the affirmative. This was based on the Court’s interpretation of “sex” within the law and regulations as only relating to biological sex, and not in any way connected to gender identity, especially in the sports context, which accounts for biological differences between males and females.

After this general analysis, the Court considered several specific arguments made by B.P.J. First, the Court disagreed that schools must make exceptions for biological males who identify as females and have taken puberty blockers and hormones because it found no basis for this in the statutory or regulatory text. The Court discussed how this interpretation, which may exclude some individuals, is nonetheless reasonable and lawful because of the differences between males and females and the way those differences can cause injuries, harm and unfairness in sports. Further, the Court stated that the school policy that prohibited B.P.J.’s participation based on the state law did not violate Title IX because Title IX only guarantees “equal athletic opportunity,” and was not meant to guarantee every student a place on a sports team. Similarly, the factual context of this scenario, according to the Court, was unique from others such as employment in Bostock v. Clayton County and therefore those decisions did not apply here.

The Court then considered the Equal Protection Clause arguments made by both B.P.J. and Hecox. In doing so, the Court applied “intermediate scrutiny” to the sex-based classifications that permitted only biological females to play on female sports teams under the challenged state laws. Under this judicial analysis, the Court considered what the states’ interests are in maintaining separate teams for biological female athletes, and if those interests are important and substantially related to the sex-based classification.

The Court accepted West Viriginia and Idaho’s stated interests of promoting safety and fairness for female athletes and found these interests to be substantially related to the sex-based classification of limiting participation on female sports teams to biological females, making the laws permissible under the Equal Protection Clause. Further, the Court rejected arguments that the subclass of student athletes like B.P.J. who have taken puberty blockers and hormones should not be subject to the same limitation due to overbreadth of the law and discrimination. The Court was unpersuaded that more information was needed about how this subclass of athletes could impact safety and opportunity in female sports, or that case-by-case consideration is necessary and manageable for the judiciary to complete. Finally, the Court held discrimination was not present here because the laws in question classify based on biological sex and not transgender status or gender identity.

This decision does not impact California at this time because the Court’s decision upheld existing state laws that limit access to female sports teams but did not require anything from states without such laws. Currently, no major changes to California laws or policies are needed. Over time, there will likely be additional cases challenging other aspects of transgender-related issues.