After the Supreme Court heard arguments in West Virginia v. B.P.J. and the companion case, Little v. Hecox, earlier this year, it looked like the challenges to West Virginia’s and Idaho’s laws prohibiting biological males from playing girls’ and women’s sports would fail. Tuesday’s ruling confirms why: Sex categories in sports exist for a reason, and neither the Constitution nor federal law requires schools to pretend otherwise.
Justice Brett Kavanaugh’s majority opinion gets the central point right. The question wasn’t whether transgender students deserve dignity, but whether the 1972 Education Amendments’ Title IX and the 14th Amendment’s Equal Protection Clause forbid schools from maintaining girls’ and women’s sports for biological females. Kavanaugh’s opinion is admirably direct: “The answer is yes.” That is, schools may preserve female athletic categories based on biological sex.
The legal history is straightforward. Congress enacted Title IX in 1972 against a background of grossly unequal athletic opportunity: In the 1971–1972 school year, about 300,000 high-school girls played sports, compared with about 3.6 million boys. Two years later, the Javits Amendment directed federal regulators to address athletics.
The resulting regulations in 1975 required “equal athletic opportunity for members of both sexes” and expressly allowed “separate teams for members of each sex” when competitive skill or contact sports were involved. In other words, rather than abolishing sex distinctions, the statute and its implementing framework depended on them.
