For years, the transgender movement has demanded that Americans go along with an increasingly rigid orthodoxy — adopt its preferred language, accept its premises without question, and treat any hesitation as bigotry. Women’s sports is where that demand finally ran into a wall. It’s one thing to ask people to use a new name. It’s another to ask the parent watching her daughter lose a state title to a biological male, or the coach watching a girl get bumped from the roster, to pretend she isn’t seeing what she’s seeing. Anyone who’s played sports or watched their kids play them knows there are real, obvious physical differences between male and female athletes. This was always going to be the issue where the emperor’s lack of clothes became impossible to ignore — and the Supreme Court said so, decisively.
In a 6–3 decision covering both West Virginia v. B.P.J. and Little v. Hecox, the Court held that neither the Equal Protection Clause nor Title IX stops states from reserving women’s and girls’ sports teams for biological females. Title IX was passed in 1972 to guarantee girls a place in athletics, after decades in which they’d been frozen out. It took chutzpah to argue, 50 years later, that the same law requires schools to let biological males take roster spots, scholarships, and trophies from the very girls it was written to protect. Six justices weren’t buying it.
West Virginia’s Save Women’s Sports Act and Idaho’s Fairness in Women’s Sports Act both define sex by biology and reserve girls’ teams accordingly — common-sense laws that got tangled up in lower courts eager to strike them down. The Fourth Circuit ruled against West Virginia, while the Ninth Circuit blocked Idaho’s law as unconstitutional under the Equal Protection Clause.
The Supreme Court reversed both. Writing for the majority, Justice Kavanaugh noted that Title IX explicitly authorizes sex-specific sports teams. Under the Equal Protection Clause he applied intermediate scrutiny — the standard for sex-based classifications — and found that “safety and competitive fairness” are important government interests substantially served by sex-based eligibility rules. He rejected the idea that courts should referee, case by case, which biological males have suppressed their advantage enough through hormones to compete against girls — an “almost impossible task” to perform fairly. For intermediate scrutiny, the fact that men and women , as a group, differ so dramatically in size, strength, and general athletic ability is sufficient to allow laws separating sports to pass constitutional muster.
Kavanaugh’s opinion didn’t shy away from naming what’s actually at stake: “Sports are generally zero sum.” Every spot given to a male athlete on a girls’ team is a spot, a starting position, or a medal taken from a girl. That’s not a hypothetical for Kavanaugh, who has coached his own daughters’ basketball teams for years — known to his players as “Coach K.” Few justices were better positioned to write that sentence.
Justice Thomas, in concurrence, went further, writing that transgender status doesn’t trigger heightened constitutional scrutiny and that sex is “binary” and “immutable.” But the line worth remembering is the one where he names what’s really been at stake all along — not just sports, but whether Americans can be made to say things they know aren’t true: “To use language to obscure reality—to show ‘indifference regarding the truth’—is to lie to the public and cease to treat our fellow citizens ‘as equal[s].'” The demand was never just for kindness toward people experiencing gender dysphoria — most Americans are happy to extend that. The demand was for everyone else to repeat a falsehood on command. Thomas just said, in a Supreme Court opinion, that no one has to.
Justice Gorsuch added that Title IX, as a Spending Clause statute, can’t bind states to obligations Congress never spelled out clearly. He also attempted to reconcile the decision with Bostock v. Clayton County — his much-maligned 2020 ruling that redefined “sex” under Title VII to include gender identity but never purported to govern locker rooms or sports teams.
Justice Sotomayor, joined by Justices Kagan and Jackson, dissented in part, significantly acknowledging that sex in Title IX is binary, but arguing the equal protection claims should have gone back down for fact-finding on whether transgender athletes are “similarly situated” to biological girls — an invitation to years of litigation over hormone levels and athletic advantage.
Justice Jackson, in a separate dissent, argued Title IX should let students compete according to gender identity rather than biology. She added that “West Virginia’s law forces B. P. J. to live—in this case, to play—as a boy though she is a girl.”
It’s worth sitting with that, because four years ago, then-Judge Jackson sat before the Senate Judiciary Committee and refused to define what a woman is because she wasn’t a biologist. That non-answer was widely mocked at the time, and fairly so. Now the same justice has no trouble declaring, as a matter of law, that a biological male is a girl. The biology didn’t get more complicated in the intervening four years. What changed is that this time, declining to answer wouldn’t have gotten her to the result she wanted.
This decision validates the laws already on the books in 27 states protecting girls’ sports, and removes the legal cloud that’s hung over them since the Fourth and Ninth Circuit rulings. Expect more states to follow now that the Court has confirmed there’s no constitutional cliff on the other side.
But don’t expect the fight to end here. The ruling says states may limit girls’ sports to biological females — not that they must. That leaves an opening for the next round of litigation: whether states that let biological males compete against girls are themselves exposing girls to sex discrimination under Title IX. If “safety and competitive fairness” justify excluding males from girls’ sports, advocates will argue, then states that decline to exclude them may be the ones violating the law.
For now, though, this is a clean, important win — for the rule of law, for the plain meaning of a 1972 statute, and most of all for the thousands of girls whose roster spots, records, medals, and scholarships are no longer up for grabs.
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Carrie Severino is the president of the Judicial Crisis Network. Follow her on X @JCNSeverino
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