The Court and Transgender Athletes: The Oral Arguments

On January 13, 2026, the Supreme Court heard oral arguments in two cases that revolved around state laws that banned transgender girls and women from participating in sports that align with their gender identity.

In West Virginia v. B.P.J., a 15-year-old who wanted to participate in middle school sports is challenging West Virginia’s ban. Of note in the facts are that B.P.J. has identified as female since the third grade and has been undergoing medical treatments to stop male puberty and taking estrogen treatments as well.

In Little v. Hecox, a 24-year-old transgender woman wanted to try out for Boise State University’s track and cross country teams but was prohibited by an Idaho law.

In both cases, the lower courts found in favor of the plaintiffs (the transgender women) and the states appealed to the Supreme Court. In Little v. Hecox, the woman asked to have her case dismissed, as she no longer wants to try out or compete; but the state has asked the Supreme Court not to allow dismissal. This is unusual but is a strategic move to get the question fully before the Supreme Court. It will require that the Court rule on the dismissal as well. (This will be what you read about later regarding mootness.)

The Supreme Court (and the parties on both sides) seemed to acknowledge and agree on some overriding principles:

1. That sex separation in sports (boys and girls, men and women) is allowed and legitimate.

2. That if someone merely identifying as a gender that they were not assigned at birth would not be sufficient to cross over to the compete as the gender they identify as.

In the arguments heard before the Supreme Court, there was a fair amount of discussion about the issue of competitive advantage. It appears that this is a clear issue for the Court, but how to determine when and how it exists and the burden it would put on schools and districts was noted. Additionally, the discussion around how this ruling might impact Title IX interpretation on the whole (including in other programs) was interesting as well.

Lastly, there was discussion as to whether to leave it to the states to draw the lines or make a national rule (which is actually the purview of Congress; the Court interprets the laws that exist, it does not write new laws). Of particular note was how the Court might reconcile a decision that says that the word “sex” in Title IX does not include sexual orientation, gender identity and transgender status, when this same Court (excepting one Justice) ruled in Bostock (a Title VII employment case) that the word “sex” does include protecting individuals on the basis of sexual orientation, gender identity and transgender status. It appears that is where the issue of competitive advantage may be the separator.

A decision should come later this spring or early summer (May/June), so an update will be forthcoming in High School Today. In the meantime, administrators should become familiar with their state laws regarding protection of individuals on the basis of gender identity and/or transgender status, because even if the Supreme Court rules that Title IX does not apply, schools still have to follow state law.

In addition, schools should check to see if their district, state association, or any other governing entity has those protections, because they will need to follow those contractual obligations as well. This has very obvious implications for athletics that cross state lines – especially if the states are able to make their own determinations, but that issue will be tackled when more information becomes available.

W. Scott Lewis, J.D., is a managing partner with TNG Consulting, chair of the National Association for Behavioral Intervention and Threat Assessment (NABITA) Advisory Board, and co-founder and advisory board member of the Association of Title IX Administrators (ATIXA). He also consults with and trains numerous sports organizations and governing bodies at all levels from high schools to Olympic-level athletes, trainers, coaches and staff, including working with the NCAA, NJCAA and the National Interscholastic Athletic Administrators Association (NIAAA). He is the legal counsel representative on the High School Today Publications Committee.