On Tuesday, the Supreme Court delivered a decision favoring conservatives, ruling that states have the authority to prevent biological males who identify as girls from competing in girls’ sports at public schools.
In a majority opinion penned by Judge Brett Kavanaugh, the court argued that Title IX permits the existence of distinct men’s and women’s sports teams, allowing states to make such determinations.
The ruling states, “The Constitution and Title IX do not mandate a total transformation of women’s and girls’ sports throughout the U.S.”
Part of the decision emphasizes that “Title IX allows schools to establish separate sports teams based on biological sex, and West Virginia’s policy aligns with Title IX by offering girls’ sports for biological females.”
Title IX ensures that “no individual in the United States shall be excluded from participation in, denied benefits of, or face discrimination based on sex, in any educational program or activity receiving Federal financial support.” 20 USC §1681(a). Shortly after Title IX was enacted in 1972, Congress introduced the Javits Amendment, prompting the then-Department of Health, Education, and Welfare (HEW) to quickly issue regulations regarding Title IX’s “prohibition of sex discrimination.” The proposed amendments highlighted the need for “reasonable provisions regarding athletic activities” tailored to each sport. By 1975, the HEW established regulations that mandated schools to provide “equal athletic opportunities for both sexes” and allowed “separate teams for each sex if team selection is based on competitive skill or if the sport is considered a contact sport.” 34 CFR §§106.41(b), (c).
Kavanaugh also remarked that claiming the law unfairly discriminates against transgender individuals is, in his view, baseless.
In line with the Supreme Court’s decision in Scrametti, the majority opined that the law concerned classifies by biological sex rather than by gender identity. “The classification meets the standards of rational basis review or intermediate scrutiny.”
Further elucidation is given:
The underlying medical and scientific rationale for the equal protection challenge hinges on the assertion that some biological males… If one identifies as female and uses puberty blockers or hormones, they do not possess any physical advantages over biological females. This assertion is still a topic of ongoing debate. Even if it were accurate, it wouldn’t necessarily reshape the equal protection analysis.
Kavanaugh highlighted that over 20 states have enacted policies allowing only biological girls to compete “on an equal footing, without the risk of physical harm or being compelled to compete against biological males.”
To emphasize:
In accordance with Title IX and the Equal Protection Clause; we believe the U.S. can continue to safeguard women’s and girls’ sports for biological females. They have the authority to set eligibility for women’s and girls’ sports based on biological sex. Title IX and the Constitution do not demand a complete reworking of women’s and girls’ sports across the nation.
Justice Ketanji Brown Jackson dissented, suggesting that “there’s reason to question the validity of the assertion that Title IX’s mention of ‘sex’ refers solely to the sex assigned at birth.”
This court case involved two transgender athletes: Lindsay Hecox, a biological male barred from trying out for Boise State University’s women’s track and field team, and Becky Pepper Jackson from West Virginia.
