On June 30, 2026, the final day opinions in argued cases for the October 2025 Term were issued, the Court held in West Virginia v. B.P.J. (No. 24-43) and Little v. Hecox (No. 24-38) that state laws limiting participation on women’s and girls’ athletic teams based on biological sex do not violate Title IX or the Equal Protection Clause of the Fourteenth Amendment. Justice Kavanaugh authored the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Barrett. Justices Thomas and Gorsuch each filed concurring opinions. Justice Sotomayor filed an opinion concurring in the judgment in part and dissenting in part, joined by Justices Kagan and Jackson, and Justice Jackson filed a separate opinion concurring in the judgment in part and dissenting in part. While some have reported the Court’s decision as a 6-3 split, that is not technically accurate. All nine Justices unanimously decided that the state laws barring transgender women and girls from female sports teams did not violate Title IX. The Court concluded that the term “sex” in Title IX refers to biological sex and that its implementing regulations allow schools to maintain separate teams for biological males and females. While the agreement on Title IX was unanimous, the Justices split 6-3 regarding the Constitution, with the majority ruling that the bans also did not violate the Equal Protection Clause.
As summarized in Dykema’s February 2026 edition, Little involved Idaho’s Fairness in Women’s Sports Act, which requires school athletic teams to be designated as male, female, or coeducational based on biological sex. Lindsay Hecox, a transgender woman, challenged the law after seeking to compete on Boise State University’s women’s cross-country and track teams. The companion case out of West Virginia involved a similar challenge brought by a transgender student to West Virginia’s Save Women’s Sports Act after seeking to participate on girls’ cross-country and track and field teams. Together, the cases presented the Court with the question of whether those laws are consistent with Title IX and the Equal Protection Clause.
Writing for the Court, Justice Kavanaugh began with Title IX’s text and implementing regulations. The majority explained that, although Title IX generally prohibits discrimination on the basis of sex, it expressly permits schools to maintain separate athletic teams for members of each sex in specified circumstances. The Court further observed that Congress directed the Department of Health, Education, and Welfare to promulgate regulations governing athletics, and those regulations authorize separate male and female athletic teams where competitive skill or the nature of the sport justifies such distinctions. Against that statutory and regulatory framework, the Court concluded that Title IX does not require schools to permit transgender female athletes to compete on women’s or girls’ athletic teams because neither the statute nor its implementing regulations support that interpretation.
Turning to the Equal Protection Clause, the majority concluded that the challenged laws classify on the basis of biological sex and, therefore, are subject to intermediate scrutiny. Applying that standard, the Court concluded that the States’ asserted interests in promoting competitive fairness and athletic safety are important governmental interests and that limiting participation on female athletic teams to biological females is substantially related to advancing those interests.
Significantly, the majority addressed only the specific state laws before it under Title IX and the Equal Protection Clause. The opinion does not resolve broader questions concerning transgender participation in athletics under different statutory or constitutional provisions or in contexts beyond the laws presented in these cases.
Justice Thomas concurred to reiterate his longstanding view that classifications based on transgender status do not warrant heightened constitutional scrutiny under the Equal Protection Clause. Justice Gorsuch separately concurred to emphasize that Bostock v. Clayton County and other Title VII employment discrimination decisions interpret materially different statutory language and, therefore, do not control the questions presented under Title IX or the Equal Protection Clause. His concurrence underscores that the Court views Title VII, Title IX, and Equal Protection analyses as analytically distinct, notwithstanding their shared focus on sex discrimination or classification.
Justice Sotomayor, joined by Justices Kagan and Jackson, concurred in the judgment in part and dissented in part. Although agreeing with the Court’s resolution of the Title IX claims, the dissent concluded that the Court should not have resolved the Equal Protection issue on the present record. Justice Jackson filed a separate opinion concurring in the judgment in part and dissenting in part to explain that, in her view, the Equal Protection analysis should proceed incrementally and on a more fully developed factual record rather than through the broad constitutional ruling adopted by the majority.
Takeaways
The Court’s analysis underscores the prudence of grounding policies in existing constitutional, statutory, and regulatory frameworks. Organizations that maintain sex-specific programs, policies, or activities should evaluate whether eligibility criteria, policy objectives, and supporting documentation are closely aligned with applicable constitutional standards and statutory and regulatory requirements. As the Court’s analysis suggests, carefully tailored policies tied to established standards and frameworks are generally more likely to withstand judicial scrutiny than policies lacking a clear legal or factual foundation.
For more information, please contact Chantel Febus, James Azadian, Ryan VanOver, and Monika Harris.