In one of the final decisions of this year’s Supreme Court term, a six-justice majority ruled in West Virginia v. B.P.J. that separating sports teams by “biological sex” does not violate the Constitution. The justices also concurred that separating sports teams by biological sex does not violate relevant federal civil rights laws.
The case largely revolves around a West Virginia girl, now in high school, who began transitioning in third grade. Her school barred her from participating in cross-country and track and field under a West Virginia law similar to one now in effect in Alabama.
Previously, in 2020, the Supreme Court ruled in Bostock v. Clayton County that Title VII of the Civil Rights Act protects individuals from discrimination based on gender identity and sexual orientation.
Justice Neil Gorsuch wrote that “when an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex.” Plaintiffs in West Virginia v. B.P.J. and other cases related to transgender Americans’ rights have argued that legislation targeting transgender people is therefore discriminatory against a protected class and should be subject to strict scrutiny.
Alabama Attorney General Steve Marshall filed amicus briefs in the case urging the Supreme Court to rule in favor of states seeking to prevent transgender athletes from competing in the name of “preserving the integrity of female athletics.”
In a press release Tuesday celebrating the decision, Marshall proclaimed that “Alabama led the way, and today, that leadership paid off.”
The majority opinion, written by Justice Brett Kavanaugh, states that references to “sex” in Title IX can be interpreted only as referring to biological sex and that states have a legitimate interest in separating public school sports teams by sex.
“The question before the Court is: Under Title IX and the Equal Protection Clause of the Fourteenth Amendment, may schools maintain women’s and girls’ sports for biological females?” Kavanaugh wrote. “In other words, may schools determine eligibility for women’s and girls’ sports based on biological sex? The answer is yes.”
Responding to arguments made by the plaintiffs, the majority opinion states that although aspiring athletes who transitioned by taking puberty blockers or hormone replacement therapy may not necessarily have any biological advantage in sports competitions, states are still allowed to use biological sex as a realistic proxy.
“In short, States are not required to conduct an individual-by-individual comparison of the physical and athletic capabilities of all biological males in order to satisfy intermediate scrutiny,” Kavanaugh wrote. “Intermediate scrutiny permits a sex-based classification that, as here, is ‘not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.’”
In a dissenting opinion, Justice Sonia Sotomayor pointed to a previous ruling that allowed women to attend the Virginia Military Institute, a historically male-only institution of higher education. In contrast to the current majority’s holding that states can bar transgender athletes from participating in sports because sex is generally a good heuristic for physical ability, Sotomayor wrote that the earlier decision showed that “unresolved factual differences matter, even if the classes of people to whom they might be relevant are themselves small.”
Alabama’s two senators quickly praised the ruling in public statements. Senator Tommy Tuberville, R-Alabama, called it a “HUGE WIN for common sense” in a social media post shortly after the decision was released.
“Common sense has prevailed!” Senator Katie Britt, R-Alabama, said in a similar post. “I am thrilled to see this ruling come out of the Supreme Court and will continue fighting to protect girls and women.”
Joshua Block, senior counsel for the ACLU’s LGBTQ & HIV Rights Project, called the decision a “heartbreaking ruling for our clients and transgender girls like them who’ve asked for nothing more than the same opportunities afforded to their peers.”
“The reality is that the equality of transgender women and girls takes nothing away from, and in fact promotes, the equality of all women and girls,” Block said. “We will continue to advance the fundamental principle that all young people deserve equal opportunity to thrive and succeed.”
