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≡ WEST VIRGINIA vs. B.P.J. ≡
This is now a part of the law of the United States:
“To provide equal opportunity for female athletes, schools do not merely maintain, for example, one soccer team, one basketball team, one ice hockey team, and one lacrosse team that are equally open to female and male athletes. That approach would deny equal opportunity to female athletes because, as all agree, females and males have inherent physical differences relevant to athletic performance.”
That’s from the opening of U.S. Supreme Court Justice Brett Kavanaugh’s majority opinion, issued Tuesday (30th) in the companion cases of West Virginia vs. B.P.J. and Little v. Hecox:
“These cases concern two of those state laws, from West Virginia and Idaho. 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? In other words, may schools determine eligibility for women’s and girls’ sports based on biological sex? The answer is yes.”
The opinion notes that 27 states have such regulations and cited the International Olympic Committee’s new “Policy on the Protection of the Female (Women’s) Category in Olympic Sport and Guiding Considerations for International Federations and Sports Governing Bodies” from March of this year.
In terms of the facts of the specific West Virginia case:
“B. P. J. is a biological male who identifies as female. In third grade, B. P. J. socially transitioned and adopted a new name. Soon thereafter, B. P. J. took puberty blockers to prevent male puberty, and in sixth grade, B. P. J. also began to take hormones.
“Shortly after passage of the West Virginia law, as B. P. J. was about to enter sixth grade, B. P. J.’s middle school principal informed B. P. J.’s mother that B. P. J. could not participate on the girls’ cross-country and track-and-field teams. B. P. J. is now in high school, where the same policies apply”
B.P.J. has been competing during the course of the litigation and won the Class AAA state girls shot put title. In the Idaho case:
“Hecox is a biological male who identifies as female. Hecox underwent male puberty. In college, Hecox began to take hormones. Hecox attends Boise State University and has competed for the women’s club soccer team. Hecox also has tried out for the women’s Division I track and cross country teams.”
Regarding the discrimination claims under Title IX of the Education Amendments of 1972, Kavavaugh explained:
“Title IX prohibits discrimination on the basis of sex. Title IX’s implementing regulations expressly permit schools to maintain separate teams for ‘members of each sex.’
“The term ‘sex’ in the 1972 Title IX statute, the 1974 Javits Amendment, and the 1975 Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex.”
He concludes:
“Separate sports teams for biological males and biological females are reasonable: Given the inherent physical differences between the sexes, allowing only biological females to play on women’s and girls’ teams can reduce the risk of physical injury and ensure fair competition.”
Kavanaugh then discusses the equal-protection arguments under the 14th Amendment to the U.S. Constitution, and he was clear in favor of the positions of West Virginia and Idaho:
“As to competitive fairness, the States contend that allowing biological males to play women’s and girls’ sports would put female athletes at a debilitating disadvantage. Again, sports are generally zero sum. Every biological male who makes the team takes a roster spot from a female athlete. Every biological male who earns playing time reduces the playing time of a female athlete. Every biological male who starts takes a starting position from a female athlete. Every biological male who wins a race takes the gold medal away from a female athlete. And so on.
“Even if only one or a few males were to play on a women’s or girls’ team, that would still place specific individual female athletes at a significant competitive disadvantage. …
“Based on all of the above, the States argue—and we agree—that the interests in safety and competitive fairness are important for purposes of equal protection analysis.”
Kavanaugh was clear, however, that “these cases do not present the distinct question of whether, under Title IX and the Equal Protection Clause, schools may allow biological males who identify as female to participate on girls’ and women’s sports teams. That question is currently the subject of litigation in some lower courts.” So, that’s for another day.
The cases were remanded back to the relevant Circuit Courts for further actions consistent with the Court’s opinion.
Separate concurring opinions were filed by Justice Clarence Thomas and Neil Gorsuch; an opinion concurring in part and dissenting in part was filed by Justice Sonia Sotomayor, joined by Justices Elana Kagan and Ketanji Jackson, and Jackson also filed a concurring and dissenting opinion.
Observed: As Kavanaugh notes, this settles the question about states with existing laws regarding prohibition of transgenders in women’s sports. It does not create a blanket ban, and as Kavavaugh points out, that question is also making its way to the Supreme Court, slowly.
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