The Supreme Court’s Latest Blow to Trans Rights

The Supreme Court has delivered another blow to LGBTQ rights, upholding legislation that bars trans girls and women from participating in women’s sports. The Court’s 6–3 decision in West Virginia v. B.P.J. (consolidated with Little v. Hecox) addressed laws in West Virginia and Idaho but, in effect, affirmed 27 state-level bans on trans women’s participation in women’s sports.

Although Idaho’s Fairness in Women’s Sports Act (2020)—the nation’s first ban on transgender athletes—and West Virginia’s Save Women’s Sports Act (2021) both bar transgender student athletes from participating on teams that match their gender identity.

The cases raised different legal questions.

In B.P.J., the Court considers how Title IX should be interpreted in relation to West Virginia’s legislation, particularly as it applies to Becky Pepper-Jackson, a 16-year-old transgender female player who, in 2021, was barred from running for her middle school’s track team, and other athletes like her, who were assigned male at birth but, because they received puberty-delaying treatment, did not undergo male puberty.

Hecox, by contrast, focused on the bans’ implications under the Equal Protection Clause.

The Court ruled that neither Title IX of the Civil Rights Act nor the Constitution’s Equal Protection Clause prevents states from barring transgender female athletes from participating in women’s sports. The Court argued that, by linking participation in women’s (and men’s) sports to an athlete’s “biological sex,” states were acting consistently with Title IX’s 1974 Javits Amendment, which Senator Jacob Javits offered to the 1972 law that opened the door for women’s sports. The amendment from the late New York Republican permits schools to maintain sex-segregated athletic teams to promote equal opportunities for female participation in school athletics.

The Court similarly argued that even under heightened scrutiny—a standard used to review sex-based classifications under the Constitution’s Equal Protection Clause—legislation that bars transgender athletes from playing for teams that match their gender identity passes constitutional muster. Such laws, the Court held, are simply protecting female athletic participation.

Testosterone and Male Athletic Advantage

Any number of legal and scientific fallacies or assumptions may lurk behind the Court’s reasoning—and trans athlete bans more broadly. The most common argument used to bar transgender women’s participation in women’s sports—despite the rarity of transgender athletes—centers on testosterone and its role in building muscle mass, height, strength, and speed. Advocates of athletic bans argue that the physiological changes associated with higher testosterone levels give athletes who were deemed male at birth a competitive advantage over most female athletes. Banning trans female athletes, advocates argue, protects cisgender female athletic competitiveness.

B.P.J. and Hecox offered compelling counterfactual evidence. Neither B.P.J nor Hecox exhibits testosterone-induced advantages over cisgender female athletes. After approximately one year of hormone replacement therapy (HRT), Lindsay Hecox experienced a noticeable decline in her athletic performance, and her race times reflected that change. She did not qualify for Boise State University’s women’s track team in 2020.

Becky Pepper-Jackson (B.P.J.) never developed the physiological markers or athletic benefits of male puberty. She started puberty-delaying therapies when she was in middle school and underwent hormone replacement therapy in 2022. Her body did not experience the physiological changes of male puberty that allow most cisgender male athletes to outcompete female athletes. 

In ways relevant to athletic competitiveness, then, Becky is physiologically indistinguishable from athletes assigned female at birth. As her attorney stated during oral arguments, “by virtue of her medical care, B.P.J. has already effectively controlled for those sex-based advantages, and so she is completely in the position that she would have been if her birth-assigned sex had been female.” 

This is why B.P.J. deployed a narrower approach regarding her legal rights. She did not contend that Title IX prohibits sex-separated sports. Rather, she argued that West Virginia’s law unlawfully denied transgender girls like herself, who had not experienced male puberty, their opportunity to play sports.

The Court Sidesteps Science

However, the majority ignores science altogether by focusing on the Javits Amendment’s promotion of women’s equality through sex-segregated student sports. For the Court, Idaho’s and West Virginia’s laws merely account for the “inherent physical differences between biological men and biological women as well as the safety and competitive fairness concerns that would arise if males were allowed to compete in female sports.”

The Court argues that the bans do not rely on gender classifications. Rather, trans female athletes are one subset of all birth-assigned-male athletes who are barred from women’s sports. 

To illustrate, Kavanaugh offers a counterexample: “if a school had a co-ed sports team but prohibited all transgender individuals from participating on the team, that would be a distinct transgender classification and, unlike today’s cases, would presumably not be analyzed and justified as a classification based on biological sex.” The Court held that in West Virginia’s and Idaho’s legislation, all identified male-at-birth athletes are barred from participating in women’s sports, which, under Title IX, is an allowable exclusion.

The Court scaffolds its arguments. First, in response to B.P.J.’s argument that West Virginia illegally prohibits her right to play sports, the Court says that legislatures are under no obligation to “conduct an individual-by-individual comparison of the physical and athletic capabilities of all biological males.” They argue that “the State is not constitutionally required” nor mandated by Title IX “to grant individualized exemptions to specific athletes or subclasses.” 

Second, it limits the relevance of the Court’s pivotal Bostock decision in 2020, which held that gender identity discrimination is a form of sex-based discrimination in employment that is outlawed under Title VII—federal legislation that bars employment-based discrimination based on race, sex, religion, and other protected classifications. 

Writing for the Bostock Court in 2020, Justice Neil Gorsuch argued: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” He explains, “take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” 

The B.P.J. majority, which includes Gorsuch, distinguishes the facts of Bostock from those presented in B.P.J. It argues that Title IX and Title VII differ in ways that quarantine Bostock’s logic. The main difference is that, unlike Title VII, Title IX’s sports-related regulations allow or encourage sex-based segregation. If Title IX promotes sex-based segregation in sports, then, argues the Court, it follows that anyone deemed male at birth, regardless of their gender identity or years of intensive treatments to limit their puberty and testosterone, can be prohibited from playing women’s sports.

Third, the Court reaffirmed its logic from Skrmetti, its 2025 decision upholding bans on gender-affirming care for minors, arguing that judges are ill-prepared to weigh competing scientific claims. Instead, as Kavanaugh states, “[t]he legislatures and the schools are better equipped—and under the Constitution, are the more appropriate entities—to assess the competing medical and scientific considerations and draw appropriate lines.”This logic may have a certain appeal to some—particularly those who bristle when courts intervene in contentious policy debates. But defaulting to legislatures in matters of scientific conflict also denies trans female athletes their rights to seek justice as assuredly as it would victims of Title VII discrimination.

The Court’s opinion does not hint at what this ruling may unleash. The decision—and its interpretation of Title IX—will likely bolster federal efforts to compel states to adopt these policies in exchange for federal funding. Only time will tell how vigorously Donald Trump administration might seek to end transgender participation in sports—particularly against states such as California, Oregon, or Maine, whose officials have been vocal adversaries of Trump’s anti-trans policies. 

Supreme Court validation may speed implementation of the existing 27 bans and the attendant questions of whether and how female athletes must prove their sex. Existing examples in other aspects of daily life are not comforting. Anti-trans policies regarding bathrooms highlight the harms all women, not just trans ones, face under a regime where females may be called upon to prove their sex. In some states, individuals have been inspired to question or even attack any individual they believe is wrongly using the women’s restroom. Even without restroom vigilantes, the laws themselves have penalties, and a display of one’s genitals could be part of any arrest or legal proceeding. 

A Note on Tone

The Court has not been shy about throwing its support behind anti-trans efforts. Despite Bostock’s 2020 ban on trans discrimination in employment under the Civil Rights Act, the Court has supported challenges to gender affirming care, revived conversion therapy, barred gender affirming practices and policies in schools, and now upheld bans outlawing trans women’s participation in women’s sports. Beyond the ruling in these trans-athlete cases, the tone employed by the Court speaks volumes about its willingness to disregard trans identities casually. 

Kavanaugh consistently refers to B.P.J., Hecox and other trans female athletes as “biological males” who identify as female—and sometimes “boys who identify as girls.” These terms betray the majority’s ideological leanings and its ignorance. “Biological male” is widely perceived as a trivializing term that ignores the experiences of transgender individuals and their attempts to rectify incongruities between their birth-assigned sex and their gender identity. “Biological males” negates the importance of gender identity as a way of organizing one’s sense of self. For B.P.J., Hecox, and other transgender individuals taking hormone treatments for gender dysphoria, it ignores the biological sex-based changes they are experiencing. It ignores biology, period.

Then there’s Kavanaugh’s coda, where transgender female athletes are depriving cisgender female athletes of their place on the team. “Every athlete who makes a team,” Kavanaugh writes, “takes a roster spot from another athlete. Every player who earns playing time reduces the playing time of a teammate. Every player who makes the starting lineup sidelines another who remains on the bench.” He continues: “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 the transgender athletes who can be and often are excluded from sports, he writes, “We recognize that student-athletes are understandably disappointed and upset when they do not make a team or otherwise cannot participate. But the Title IX regulations … cannot and do not guarantee every student a spot on a team’s roster.” 

Kavanaugh, a coach to his daughter’s basketball teams, who has spoken lovingly about their experiences as athletes, excludes B.P.J., Hecox and all transgender female athletes from the “women and girls,” including his own, whom he has lauded. By extension, he diminishes parents like himself who wish to coach their daughters’ teams. He elides, if not callously disregards, B.P.J.’s and Hecox’s “time and effort to train” and their insatiable commitment to sports, which carried the additional burden of legal and public backlash. These student-athletes deserve better.