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As the Supreme Court Prepares to Decide the Legality of Trans-Athlete Bans, Schools Must Ready Themselves for Far-Reaching Precedent Addressing "On the Basis of Sex"
On July 3, 2025, the Supreme Court granted certiorari in two cases challenging the constitutionality of state laws that categorically exclude transgender girls and women from participating on female-designated athletic teams: Little v. Hecox and West Virginia Board of Education v. B.P.J. In both cases, transgender student-athletes brought claims under the Equal Protection Clause, arguing that the laws unlawfully discriminate based on sex and transgender status by denying them the opportunity to participate on sports teams consistent with their gender identity.
The Court will be reviewing the decisions from the Ninth and Fourth Circuit Courts of Appeals, both of which enjoined or otherwise limited enforcement of the challenged trans-athlete bans after applying intermediate scrutiny and finding the plaintiffs likely to succeed on the merits of their Equal Protection claims.
The Supreme Court's decision to grant review of these two cases comes shortly after its ruling in United States v. Skrmetti, in which it upheld Tennessee's ban on gender-affirming medical care for trans minors. In that case, the Court applied rational-basis review, concluding that the law did not classify on the basis of sex but instead regulated medical treatments based on age and diagnosis.
Little v. Hecox
In 2020, Idaho enacted the Fairness in Women's Sports Act, which bars any individual who is not "biologically female" from participating on a girls' or women's sports team at any level of competition. It also includes a sex dispute verification process, which allows any person to dispute the sex of a person competing in athletic competition as a female and requires the challenged athlete to undergo confirmatory medical testing.
Plaintiffs Lindsay Hecox, a transgender woman and then-student at Boise State University, and Jane Doe, a cisgender high school student concerned that her gender non-conforming appearance might subject her to invasive testing, filed suit in federal court alleging violations of the Equal Protection Clause of the Fourteenth Amendment.
The U.S. District Court for the District of Idaho granted a preliminary injunction, and a three-judge panel of the Ninth Circuit Court of Appeals affirmed. The panel found that the Act facially classifies based on sex, as it limits participation on female-designated athletic teams to individuals deemed "biologically female" based on reproductive anatomy and chromosomes at birth. The panel further held that the Act discriminates based on transgender status. It applied intermediate scrutiny based on both grounds: first, because sex-based classifications are subject to intermediate scrutiny under established Supreme Court precedent; and second, because Ninth Circuit precedent recognizes transgender status as a quasi-suspect classification that likewise warrants heightened review.
The court considered whether the means employed by the Act to achieve its purported goals of promoting competitive fairness in sports were substantially related to the state's asserted interest and concluded that they were not. It found the law overbroad because it imposed a categorical exclusion of all transgender girls and women from female sports teams, without regard to individualized factors such as hormone therapy use, transition status, or athletic ability. The court also determined that Idaho had presented insufficient evidence that permitting athletes like Hecox, who was undergoing hormone therapy in accordance with NCAA guidelines, would negatively impact competitive fairness. The court also found that the Act's sex verification provision was unnecessarily invasive and likely to deter even cisgender female athletes from seeking to participate in sports.
The Ninth Circuit ultimately held that the statute was unlikely to survive intermediate scrutiny and affirmed the preliminary injunction as to Hecox. It vacated the injunction to the extent it applied to individuals beyond Hecox, but only because it found the scope of the lower court's order unclear.
West Virginia Board of Education v. B.P.J.
In 2021, West Virginia enacted the Save Women's Sports Act, which bars any student whose "biological sex determined at birth is male" from participating on girls' or women's athletic teams. B.P.J., a transgender middle school girl receiving puberty blockers and estrogen therapy, filed suit in federal court after being excluded from her school's girls' cross-country and track teams. She alleged that the law violated both the Equal Protection Clause and Title IX by barring her from competing consistent with her gender identity and denying her equal access to educational programming.
The U.S. District Court for the Southern District of West Virginia initially granted a preliminary injunction but later vacated it and entered summary judgment in favor of the state. On appeal, a divided panel of the Fourth Circuit reversed. Like the Ninth Circuit in Hecox, the Fourth Circuit first determined that the Act facially classifies based on sex, as it limits participation on girls' and women's teams by reference to sex assigned at birth. The panel also concluded that the Act classifies based on gender identity, which, under Fourth Circuit precedent, constitutes a quasi-suspect class and therefore warrants heightened scrutiny.
As in Hecox, West Virginia advanced justifications for the law based on preserving fairness and athletic opportunities for cisgender female athletes, which the Fourth Circuit acknowledged as important governmental interests. However, the Four Circuit also ruled that the Act's failure to account for individual factors made it insufficiently related to its legitimate objectives. It ultimately concluded that issues of fact on B.P.J.'s as-applied equal protection challenge rendered the Trial Court's summary judgment decision in defendants' favor erroneous.
The Fourth Circuit concluded that the Act also violated Title IX by excluding B.P.J. from girls' teams based on her sex assigned at birth and transgender status—both of which it held constitute discrimination "on the basis of sex." It relied on earlier Fourth Circuit precedent holding that a school board policy prohibiting a transgender boy from using school bathrooms consistent with his gender identity violated Title IX. See Grimm v. Gloucester Cnty. Sch. Bd. 972 F.3d 586 (4th Cir. 2020)(citing Bostock v. Clayton County, 140 S. Ct. 1731 (2020)).
The Question Before the Supreme Court
At the core of Hecox and B.P.J. is whether laws that categorically bar transgender girls from female-designated sports teams based on "biological sex" or "sex assigned at birth" constitute impermissible sex-based classifications under the Equal Protection Clause and, if so, whether they warrant intermediate scrutiny. Although neither appellate court needed to decide whether transgender status or gender identity is itself a quasi-suspect class—relying instead on existing precedent—the Supreme Court could choose to address that broader question, as it has in prior cases where embedded constitutional issues were presented.
Beyond equal protection, the B.P.J. case also presents the Court with an opportunity to clarify Title IX's application in the context of gender identity and athletics in a ruling that will have far-reaching consequences. Remember: the Title IX ruling in B.P.J. was based on prior Fourth Circuit precedent that was, in turn, based on Bostock, a Title VII case involving alleged employment discrimination resulting from the employee's gender identity. The Biden-era Department of Education also cited Bostock when it issued its 2024 regulations prohibiting discrimination based on gender identity and sexual orientation. Many of the challenges to those regulations questioned the applicability of Bostock to Title IX.
The bottom line is that, though Hecox and B.P.J. are about athletics, the Supreme Court has before it the option to limit the scope of its ruling in Bostock, and to issue new guidance on what "on the basis of sex" means in the context of Title IX and Equal Protection jurisprudence. This will have far-reaching implications—from resolving the current Circuit split over gender-identity based bathroom access, to impacting future Title IX regulations that explicitly prohibit discrimination against LGBTQ+ individuals, to undercutting protections for transgender students—like preferred name use policies—that have no bearing on fairness in athletics.
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