Curriculum

The law (H.B. 3293 — “Save Women’s Sports Act,” 2021): In 2021, West Virginia enacted H.B. 3293, the “Save Women’s Sports Act.” The statute defines “girl” and “woman” based on biological sex at birth and bars biological males from participating on female athletic teams in middle school, high school, and college.

The plaintiff (B.P.J.): The suit was brought by Becky Pepper-Jackson (“B.P.J.”), a 12-year-old transgender girl who sought to participate on her middle school’s girls’ cross-country and track teams. A key feature of this case is that B.P.J. has reportedly been on puberty blockers since the onset of puberty. Her legal team argued that because she did not experience “male puberty,” she does not possess the physiological advantages (e.g., increased muscle mass and bone density) the state asserted the law was meant to address.

Lower Court Decisions

• Preliminary injunction: U.S. District Judge Joseph Goodwin initially issued a preliminary injunction blocking enforcement of the law as applied to B.P.J., allowing her to compete while the case proceeded.
• Summary judgment (district court): Judge Goodwin later granted summary judgment upholding the law and dissolved his injunction. He reasoned that the legislature could use biological sex as an administrable dividing line for sports categories and concluded the law was substantially related to the important governmental interest of protecting athletic opportunities for biological females.
• Court of Appeals: The U.S. Court of Appeals later reversed the district court. Its analysis focused heavily on Title IX, concluding that the law violated Title IX by discriminating against B.P.J. “on the basis of sex.”

What the Supreme Court Examined

• Title IX (1972) and the meaning of “sex”: The Court examined how Title IX’s ban on discrimination “on the basis of sex” applies to policies excluding transgender girls from girls’ teams—specifically, whether “sex” in Title IX should be read as biological sex only, or whether it encompasses discrimination against transgender students.
• The State’s argument (West Virginia): West Virginia argued that in 1972, “sex” meant biological sex, and Title IX was enacted to expand athletic opportunities for biological females who were historically excluded. The state contended that interpreting “sex” to include gender identity undermines the purpose of sex-separated sports and makes the category of “women’s sports” effectively meaningless.
• The challenger’s argument (B.P.J.): B.P.J. argued that excluding a girl from a girls’ team because she is transgender is discrimination “on the basis of sex” under Title IX.

The “Physical Advantage” vs. “Puberty Blockers” Question

This is the most fact-specific and contested aspect of the dispute.

• The question: Can a state categorically exclude a transgender girl who, due to medical treatment, allegedly does not have male-puberty-related physiological advantages?
• What the Court probed: Whether the law is overinclusive—even if separating sports by sex is permitted to prevent male physiological advantage from dominating female categories, does that rationale still justify excluding someone like B.P.J.?
• State’s rebuttal: West Virginia argued that “biological sex” provides a clear, administrable rule and that courts should not require schools to engage in individualized, potentially intrusive assessments (e.g., hormone-based eligibility determinations) to decide who is “female enough” to participate.

Why This Case Matters

This case functions as a major statutory test for the future of Title IX in the context of athletics:

• If West Virginia prevails: States likely gain broad authority to structure girls’ and women’s sports eligibility around biological sex classifications.
• If B.P.J. prevails: Title IX may be interpreted to prohibit exclusion of transgender girls from girls’ teams, potentially strengthening arguments for inclusion—particularly in cases involving early transition or medical suppression of puberty.

What Does this Mean?

A Supreme Court ruling in the Idaho and West Virginia cases could reshape the national legal baseline for (1) what Title IX requires, (2) how much room states and schools have to run sex-separated sports, and (3) whether “sex” in these contexts means biological sex or includes gender identity. Even though the challenged statutes are state laws, the key is that Title IX is federal law: once the Supreme Court interprets it, that interpretation effectively governs every school and college that receives federal education funds (almost all public schools and most private colleges).

1. Title IX: a nationwide rule, not a state-by-state question
   If the Court decides that excluding transgender girls from girls’ teams does not violate Title IX, that becomes a strong nationwide shield for states (and schools) that adopt “biological sex” eligibility rules. Conversely, if the Court decides such exclusions do violate Title IX, then many state “Save Women’s Sports” laws become vulnerable everywhere because federal law would preempt conflicting state rules.
   1. Practical consequence: one Supreme Court interpretation can invalidate (or validate) dozens of state laws and force schools to align policies nationwide.
2. What “sex” means under Title IX—core issue
   These cases are vehicles for the Court to answer (explicitly or functionally):
   • Sex = biological sex (male/female) as understood when Title IX was enacted; or
   • Sex includes gender identity (or transgender status) for Title IX purposes.
   • That single interpretive choice cascades across the country:
     • athletics eligibility,
     • sex-separated teams and competitions,
     • locker rooms and related athletics facilities (often litigated alongside sports questions),
     • compliance obligations for schools and NCAA-like governing bodies.
3. Standard of review: how hard it is to defend a girls-sports category
   Even if the Court doesn’t announce a single definition of “sex,” it can decide what justification is required for a girls-sports eligibility rule.
   • If the Court applies a more deferential approach (e.g., states can use clear biological lines to protect competitive equity and safety), then states get broad freedom to legislate.
   • If it applies a more demanding approach (requiring individualized assessments, narrower tailoring, or proof of advantage), then blanket biological-sex bans become much harder to sustain.
     • That would push the whole country toward:
       • sport-by-sport or puberty-based rules,
       • hormone-based eligibility criteria,
       • individualized eligibility determinations—rather than categorical sex-at-birth rules.
4. “As-applied” vs “facial” rulings: how wide the ripple is
   The Court could rule narrowly (only for the specific student) or broadly (for everyone).
   • Narrow / as-applied: e.g., a trans girl who did not experience male puberty (puberty blockers) must be allowed, but the state might still exclude others. This would create complex national standards and more litigation about medical facts and categories.
   • Broad / facial: either (a) these bans are generally allowed under Title IX/Constitution, or (b) generally forbidden. That would set a clean national rule.
5. Preemption: state laws vs federal funding conditions
   • Title IX operates as a condition attached to federal education funding. If the Court reads Title IX to require inclusion of transgender girls, then a state law requiring exclusion creates a direct conflict.
   • Nationwide effect: schools in states with exclusion laws could face: “comply with state law and risk federal funding / liability” versus “comply with Title IX and violate state law.” A Supreme Court decision would largely resolve which side wins.
6. Spillover beyond K–12: Many of these statutes cover K–12 and sometimes colleges. A Supreme Court Title IX ruling would affect:
   • public universities,
   • community colleges,
   • private colleges receiving federal funds,
   • athletic conferences and eligibility policies built around Title IX compliance.
7. The “girls’ sports” category itself: stability vs fragmentation
   Depending on the outcome, the country moves toward one of two systems:
   • If the Court favors “biological sex” eligibility rules
     • Girls’ sports is legally anchored to biological sex, and states/schools have wide discretion to exclude biological males.
     • Litigation likely shifts to edge cases (DSD/intersex conditions, enforcement mechanisms, privacy, due process)
   • If the Court favors inclusion under Title IX
     • Schools nationwide may need to allow participation based on gender identity (at least in many circumstances).
     • Expect rapid policy changes and more disputes about competitive equity, safety, and whether sport-specific restrictions are still permitted.
8. Interaction with federal agency rules (Department of Education)
   There’s also an administrative layer: the Department of Education issues Title IX regulations and guidance. A Supreme Court interpretation would constrain what any administration can do via regulation and either validate or undercut future agency attempts to define “sex” to include gender identity in athletics.

Bottom Line

A Supreme Court decision in these cases could effectively determine whether Title IX nationwide protects a biological-sex-based girls’ category, or whether Title IX requires inclusion of transgender girls in girls’ sports (fully or in certain circumstances). Either way, it would set the controlling legal framework for virtually every school in the country, and would likely decide the fate of many existing and proposed state “girls’ sports” laws.