Update, July 25, 2026: The Court answered on June 30. In West Virginia v. B.P.J., 609 U.S. ___ (2026), decided with its Idaho companion Little v. Hecox, Kavanaugh, J., wrote for six Justices reversing the Fourth Circuit. Title IX permits schools to keep girls’ teams for students who are biologically female, and the Equal Protection Clause demands no athlete-by-athlete comparison. Sotomayor, Kagan, and Jackson dissented on the equal protection question. The narrow path sketched below, an age-and-context distinction drawn case by case, is precisely what the Court declined, and it declined it wholesale. What follows is the analysis as published before the decision. Docket and opinions.
B.P.J. was assigned male at birth and has lived as a girl since third grade. Her school district gave her a formal Gender Support Plan; she has taken puberty blockers to forestall male puberty. She wanted to run cross country and track for her middle school team. Under West Virginia’s 2021 “Save Women’s Sports Act,” she was ineligible. Now a high school student, she is the reason the Supreme Court will decide this Term how the Equal Protection Clause treats categorical exclusions of transgender students from public school athletics, a question on which lower courts have divided.
The statute, H.B. 3293, restricts participation on girls’ and women’s sports teams in West Virginia public schools and universities to students whose “biological sex determined at birth” is female. A federal district court first enjoined its enforcement as to B.P.J., then later entered judgment for the state. The Fourth Circuit, in a divided panel decision, reversed on Title IX, holding the statute’s application to B.P.J. violated that Act, and vacated and remanded the equal-protection claim without deciding it. B.P.J. v. West Virginia State Bd. of Educ., 98 F.4th 542 (4th Cir. 2024). The Supreme Court granted certiorari on both questions.
One set of numbers frames the case. For most of the seasons B.P.J. competed under a preliminary injunction, her results were unremarkable (51st of 66 runners in one meet, 123rd of 150 in another), though the state’s briefing answers with her top-fifteen track finishes in the spring of 2024. In this litigation, unremarkable is the point. Those numbers figure prominently in the challengers’ briefing as evidence that, at least as to this athlete, the state’s competitive-fairness rationale lacks empirical support. The state and its amici answer at a different altitude, emphasizing physiological differences between natal males and natal females that emerge during and after puberty and the role of those differences in sex-segregated competitive sport. The challengers reply that those differences, whatever their ultimate relevance in adult athletics, are mediated by puberty blockers in B.P.J.’s case and are overstated as applied to pre- and peri-pubescent children generally.
The doctrinal framework
Sex-based classifications trigger intermediate scrutiny under the Equal Protection Clause. The government must show that its classification is “substantially related” to “important governmental objectives” and that its justification is “exceedingly persuasive.” United States v. Virginia, 518 U.S. 515 (1996) (VMI). VMI adds two disciplines. The state’s justification must be genuine rather than post hoc, and it may not rest on broad generalizations about the capacities of men and women.
Two antecedent questions decide how that framework applies here.
The first is whether H.B. 3293 classifies on the basis of sex at all. The state says no. On its account, the statute recognizes biological distinctions rather than treating similarly situated people differently because of sex. The challengers answer with Bostock v. Clayton County, 590 U.S. 644 (2020), in which the Court held under Title VII that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” But Bostock is a statutory decision, not a constitutional one, and in United States v. Skrmetti, 605 U.S. 495 (2025), the Court declined to carry its reasoning into equal protection analysis, holding that Tennessee’s ban on gender-affirming care for minors classified by age and medical use, not by sex. How much of Bostock’s logic travels, and how much Skrmetti already forecloses, is itself contested in the case.
The second is what kind of tailoring intermediate scrutiny demands. The state reads VMI as permitting categorical classifications where the underlying generalization is empirically supported. The challengers read it as requiring individualized assessment where feasible, and as forbidding classifications that sweep substantially beyond their justification.
The arguments
The state advances three principal justifications. Competitive fairness comes first. Post-pubertal physiological differences (in muscle mass, bone density, cardiovascular capacity, and other respects) can produce performance advantages that persist after hormonal treatment, and the integrity of female athletics, along with the opportunities Title IX was designed to create, depends on limiting girls’ and women’s teams to natal females. Safety follows. Sex-based physical differences create elevated injury risk in contact and collision sports, and those risks, the state says, are non-speculative. Administrability closes the set. Line-drawing by natal sex produces clear rules for schools, coaches, and families, and avoids invasive or contested inquiries into hormone levels, surgical status, or the timing and efficacy of puberty blockers. Categorical rules, on this account, are administrable in ways individualized determinations are not.
Amicus briefs supporting the state, including briefs from female collegiate athletes and from philosophers writing on sex categorization, extend these themes. Sex-based classifications in athletics, they argue, are not invidious but protective; women’s sports emerged as a remedial category precisely because physiology matters; and abandoning that premise in the name of inclusion would erode decades of Title IX gains.
The challengers do not contest that post-pubertal physiological differences can matter in sport. They contest whether H.B. 3293 is tailored to those differences, and on their account the statute misses in both directions. It is overinclusive because it applies across secondary schools and universities alike, and across every sport, from cross country to contact football. A sixth-grader implicates the physiological rationales the state invokes only weakly; a puberty-suppressed middle-schooler running cross country implicates them barely, if at all. And it is underinclusive because it targets transgender status rather than the physiological characteristics the state says it cares about. Cisgender girls with naturally elevated testosterone, or with differences of sex development resulting in XY chromosomes, are not excluded. If the concern is physiology, the challengers argue, the line the statute draws does not match it.
On Bostock, they argue that the decision’s core logic (that sex is necessarily implicated whenever transgender status is the basis of differential treatment) applies as readily in the constitutional context as in the statutory one. They add that exclusion from school athletics inflicts educational and dignitary harms relevant to the scrutiny analysis, pointing to the pedagogical function of school sports and the Court’s long-standing recognition that students retain constitutional rights in school. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
Two meanings of biological reality
Both sides invoke “biological reality,” and each means something different by it.
For the state, the relevant biology is the set of average post-pubertal differences between natal males and natal females that affect athletic performance. Those differences are documented in the scientific literature, and the state’s position is that legal categories can track population-level differences without committing to any particular claim about individual variation.
For the challengers, the relevant biology is the actual physiology of the athlete in question. Chromosomal, gonadal, hormonal, and phenotypic sex can diverge, both naturally and through medical intervention. A categorical rule ignores that variation, and therefore rests, they argue, on exactly the kind of generalization VMI forbids.
The factual question of how much athletic advantage natal males retain after hormonal suppression, at various ages and for various sports, is genuinely contested in the scientific literature. The legal question is prior to that one. It asks how much factual uncertainty is compatible with a categorical sex-based rule under intermediate scrutiny.
The narrow path
One way to resolve the case is to rule broadly in either direction. The Court could hold that any sex-based classification in athletics must satisfy intermediate scrutiny on an individualized basis, or it could hold that states are free to draw bright lines based on natal sex. Neither outcome produces a stable equilibrium. The first would reach collegiate and professional athletics, where scholarship dollars, league rules, and international governing bodies create considerations not present in K-12. The second would authorize exclusion from middle school kickball in service of concerns about elite competition.
A narrower path is available. The Court could rule only as to K-12 public school athletics and hold that, in that context, a categorical exclusion is not substantially related to any of the state’s asserted interests. Several features of the school context support such a holding, and none of them generalizes upward. School athletics are primarily educational. Participation teaches teamwork, discipline, and resilience, and elite competitive outcomes are a secondary and uneven product of school sports, not their purpose. The competitive-fairness interest is weakest where competition itself is least consequential; no scholarships are at stake in a middle school cross country meet. Schools already make individualized determinations about athletic eligibility based on age, grade, residency, academic standing, and medical clearance, so incorporating further inquiries, if any are needed at all in the K-12 context, is not an administrative leap. And the dignitary and developmental stakes of exclusion are highest for minors, whose identities are still forming and whose access to school-based opportunities is constrained by law.
This framing has doctrinal appeal. It enforces VMI’s individualized-assessment norm at the place the state’s categorical rule has the weakest justification, without resolving every question about sex classifications in every athletic setting. It preserves regulatory flexibility for collegiate and professional bodies, whose rules will continue to evolve on their own terms. And it accommodates the reasonable view that population-level physiological differences can matter in some competitive contexts without letting those generalizations decide the question in contexts where their force is weakest.
The age-and-context distinction is not the only principled resolution; a Court inclined toward broader intervention on either side can find doctrinal room to take it. But a narrow ruling of this kind would be consistent with both the text of VMI and the tradition of resolving equal protection cases on the narrowest available ground.
A decision is expected by the end of the Term. Whatever the Court concludes, the ruling is likely to shape not only the immediate dispute over H.B. 3293 but also a set of similar statutes in other states, the NCAA’s ongoing rulemaking, and, potentially, the litigation posture for transgender plaintiffs in other educational and professional settings. The more lasting question is whether the Court uses the case to articulate a general equal protection framework for sex- and gender-based classifications, or decides narrowly. In equal protection doctrine, the narrower path has often been the more durable one.
The authorities: West Virginia v. B.P.J., 609 U.S. ___ (2026), decided with Little v. Hecox; B.P.J. v. West Virginia State Bd. of Educ., 98 F.4th 542 (4th Cir. 2024); United States v. Skrmetti, 605 U.S. 495 (2025); United States v. Virginia, 518 U.S. 515 (1996); Bostock v. Clayton County, 590 U.S. 644 (2020); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); W. Va. Code ยง 18-2-25d.
John J. Lloyd is a Florida attorney and the creator of the FLexlaw legal research platform.