Transgender Ruling – What it Means for Interscholastic Sports

This June, the Supreme Court decided the cases of Little v. Hecox and West Virginia v. B.P.J. (now known as West Virginia v. B.P.J.) and addressed one of the most closely watched Title IX questions in decades: whether states may restrict participation in girls’ and women’s scholastic athletics based on biological sex. Although the cases arose from different state laws and legal claims, both lawsuits challenged state statutes limiting female athletic participation to athletes whose biological sex is female.

A big question leading up to the decision centered on a prior 2020 Supreme Court decision, Bostock v. Clayton County, when the Court held that employment discrimination on the basis of sexual orientation, transgender status or gender identity violated Title VII, essentially saying that the word “sex” in Title VII included those categories as protected classes. The thinking was, if “sex” in Title VII prohibits discrimination based on transgender status in employment, then a law or policy that on its face excludes transgender individuals would also be considered discrimination under Title IX.

However, in B.P.J., the Supreme Court’s answer was more nuanced than some anticipated because the Court treated sports and athletics as requiring a different legal analysis. It is important to note that Bostock remains good law, prohibiting discrimination on the basis of sexual orientation, transgender status, and gender identity in employment contexts. In other words, the transgender coach is protected, but the transgender athlete is not.

Why? Well, the Court essentially said, “Because…well, sports.” This is not the actual quote from the court, but it captures the essence of the opinion. Competitive athletics has long occupied a unique place under Title IX. The Court determined that safety, fair competition, physiological differences, roster opportunities, championships, scholarships and competitive balance all create considerations that do not exist in employment. So, the Court largely just accepted that sports present different legal questions requiring different analyses.

The facts matter a lot in this case. B.P.J.’s Equal Protection claims presented interesting arguments, in that B.P.J. argued that because she had undergone hormonal treatment prior to puberty, the law was not substantially related to the State’s justification of safety and competitive fairness. The Court was ultimately not persuaded by this argument, which paves the way for additional states to potentially enact restrictions on transgender female athletic participation – or not.

However, while the Court upheld the constitutionality of the state laws that prohibit participation by athletes in sports, it did not hold that Title IX requires every school to separate athletic participation based on biological sex or prohibit transgender girls and women from participating on girls’ and women’s teams. In other words, the Court said that a state can pass a law like West Virginia or Idaho, but it does not have to. So, it is essentially a state-by-state determination.

Also, the Court did not resolve every question involving transgender students and Title IX. For example, if “sex” under Title IX means “biological sex” and not gender identity, what will happen when stereotypical assumptions about biological sex result in discrimination against people based on their sexual characteristics?

In other words, if a coach or administrator thinks someone is not acting “masculine” or “feminine” enough, that would likely still be sex discrimination. Many appeals courts have ruled that Title IX affords protections when sex stereotypes and assumptions about sex characteristics lead to discrimination. Those decisions are not overruled by BPJ.

This decision invites additional litigation about other related legal questions, such as the applicability of the Bostock analysis to bathrooms and locker rooms, among others. Those questions are already beginning to make their way through the courts.

Now, the more difficult part is determining what this decision means for your school or district.

1. Pay attention to your state laws. If LGBT are protected under your state laws, you are not likely to have a law like West Virginia or Idaho pass. So, your district or state association is bound by state law. (But a few districts are wanting to challenge this.)

2. Consult with your legal counsel if there is discussion of instituting a policy that restricts participation.

3. If you cross state lines to compete, know the laws in the state where you are competing if, on the off-chance, you have an athlete to whom these rules would apply.

That reality also serves as an important reminder about Title IX practice itself. The work often can’t be separated from the overlapping requirements of state or local law, as well as institutional or district policy.

Lastly, pay close attention to what this means for women’s sports. As the women’s rights groups in sport champion this case as a victory for protecting women’s sports, the next logical step is to force a re-examination of the other inequities in women’s sports – most notably the funding and facility discrepancies. Districts would do well to do a self or external audit to determine areas of exposure and develop a plan to resolve those issues.

A Supreme Court decision like this is never the end of the conversation, just the beginning of more questions. Some old, some new, but all on the table now. Stay tuned to future issues of HST for updates.

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.