Key Takeaways
- The U.S. Supreme Court held that “sex” in Title IX means biological sex, not gender identity, allowing states to restrict women’s sports eligibility to biological women and girls.
- The decision leaves open whether schools may voluntarily permit transgender athletes to participate on teams aligned with their gender identity and does not address facilities access.
- Schools should coordinate across departments and consult counsel before modifying eligibility or access policies in light of this ruling.
On June 30, 2026, the U.S. Supreme Court, in West Virginia v. B.P.J. and Little v. Hecox, held that schools may determine eligibility for women’s and girls’ sports teams based on biological sex (also referred to as sex assigned at birth) without violating Title IX or the Equal Protection Clause. In reaching its decision, the Court opined that “on the basis of sex” for purposes of Title IX means biological sex, not gender identity.
The decision leaves key questions unresolved, including those regarding facilities access and whether colleges and universities may voluntarily adopt policies allowing transgender athletes to compete on the sports teams consistent with their gender identity. Although the Court’s holding arose in the athletic context, its conclusion that “sex” means biological sex is likely to shape Title IX disputes beyond sports. Schools should work closely across departments, and in consultation with counsel, to assess their policies in light of this decision.
Background
In recent years, 27 states, the International and U.S. Olympic Committees, and the NCAA banned transgender women and girls from competing in women’s and girls’ sports. The B.P.J. and Little cases involve transgender female athletes who sought to participate on sports teams that aligned with their gender identity in states that prohibited them from doing so. In a 6-3 decision, the Supreme Court upheld the state laws, concluding that they did not violate Title IX or the Equal Protection Clause.
The Court first held that the state laws did not violate Title IX, which prohibits discrimination “on the basis of sex” in federally funded education programs and activities. Considering the ordinary meaning of the term “sex” in 1972, the time of Title IX’s enactment, the Court concluded that the term “sex” as used in Title IX “cannot plausibly be interpreted to refer to anything other than biological sex.” In so holding, the Court declined to extend the holding of Bostock v. Clayton County to Title IX. In Bostock, the Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of sexual orientation or gender identity. To distinguish Bostock, the Court asserted that the “factual contexts” of employment and athletics are “vastly different,” as are the two statutes.
Applying this conclusion in the context of athletics, the Court noted that Title IX’s implementing regulations require that schools provide “equal athletic opportunity for members of both sexes,” and authorize “separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” Unlike in the employment context, the Court reasoned, the inherent physical differences between the sexes matter in sports. Absent teams sorted based on biological sex, biological women could be denied an equal opportunity to compete.
The Court’s holding on the meaning of “on the basis of sex” in Title IX resolves a circuit split on the issue: Previously, the Ninth and Eleventh Circuits held that “on the basis of sex” for Title IX purposes does not include gender identity, while the Fourth and Seventh Circuits held that “sex” in Title IX includes gender identity. While state law and institutional policy may continue to prohibit discrimination on the basis of gender identity, the Court was clear that such protections do not stem from Title IX.
The Court then explained that the state laws did not violate the Equal Protection Clause. Gender-based classifications must survive intermediate scrutiny, meaning that the classification must be substantially related to an important governmental objective. The Court found both criteria were met here. The states had strong interests in limiting women’s sports teams to biological women — namely, promoting safety and ensuring competitive opportunity. And these restrictions were substantially related to those interests. In the distinctive context of sports, states did not have to make an exception for biological males who identify as female and have taken puberty blockers or hormones.
Practical Implications and Recommended Next Steps
The Court expressly reserved the question of whether schools may allow biological males who identify as female to participate on sports teams that align with their gender identity, in states without laws such as the ones at issue in these cases. In addition, while it determined that “on the basis of sex” refers to “biological sex,” the Court did not explicitly address whether or under what circumstances a federally funded institution may permit access to facilities such as restrooms or locker rooms consistent with gender identity. This means institutions in states without laws prohibiting facilities use by biological sex retain some discretion but now face increased legal risk under Title IX. Ongoing lower-court litigation on this issue should be monitored closely. In addition, institutions operating across multiple states must reconcile differing state-law mandates.
The decision does not disturb the longstanding requirement under Title IX to provide equal athletic opportunity and equivalent facilities, resources and support to women’s teams.
Higher education institutions should consider the following next steps:
Coordinate cross-functional compliance
Ensure alignment among the office of general counsel, the Title IX coordinator, athletics administration and compliance departments on updated eligibility frameworks.
Monitor ongoing lower-court litigation and Department of Education Office for Civil Rights investigations
Track developments on the still-open question of whether schools may voluntarily permit transgender athletes to participate on teams aligned with their gender identity.
Consult counsel before changing existing policies
Given the unresolved permissive-participation question and multistate complexity, institutions should seek legal advice before adopting, modifying or rescinding eligibility policies.
Remind employees and students of existing anti-discrimination law and institutional policies
The B.P.J. decision does not alter the Supreme Court’s holding in Bostock v. Clayton County, which prohibits employment discrimination based on an employee’s sexual orientation or transgender identity, nor does it affect other federal and state laws prohibiting discrimination.
McGuireWoods’ higher education team advises colleges, universities and other institutions on the full range of Title IX, constitutional and regulatory compliance issues, including athletic eligibility, institutional governance and risk management. For questions about the impact of this decision on your institution, contact the authors, your McGuireWoods contact, or a member of the Higher Education Enforcement & Regulatory Counseling Practice Group.