Common sense and fairness on trial

Early this month, the United States Supreme Court agreed to hear two important cases—Hecox v. Little and B.P.J. v. West Virginia—that go to the very heart of fairness in women’s sports. In these cases, the lower courts decisions prevented Idaho and West Virginia from limiting participation in women’s sports to biological females. The cases thus present a simple question with massive implications: Can states protect athletic opportunities (not to mention safety) for women and girls through sex-differentiated sports?

The answer should be obvious. Biology matters. As Justice Ruth Bader Ginsburg famously explained in United States v. Virginia, the “[p]hysical differences between men and women” not only exist but are “[i]nherent” and “enduring.” Indeed, from a biblical perspective these inherent differences are a cause for celebration. But in today’s cultural landscape, common sense often needs defending. Thankfully, the Supreme Court has agreed to step in and review lower court decisions that prevent states from protecting athletic opportunities for girls.

This case, Hecox v. Little, arrives because Idaho passed the Fairness in Women’s Sports Act, which makes clear that teams designated for women are reserved for biological females. The Ninth Circuit put that law on hold, ruling that Idaho’s statute violated the Equal Protection Clause. It wrongly treated “gender identity” as a quasi-suspect class and dismissed Idaho’s important interest in preserving female-only competition.

The Equal Protection Clause doesn’t prevent states from protecting women’s sports. Just month, in its landmark decision in Skrmetti, the Supreme Court held 6 to 3 that protecting minors from risky drugs and procedures for so-called gender transitions does not violate the Equal Protection Clause. This holding bodes well for Idaho’s law. In Skrmetti, the Supreme Court explained that “biological differences between men and women” may lead to different drug safety and efficacy outcomes. So too for women’s sports. Biological differences between men and women advantage men in strength and endurance and also raise privacy concerns.

B.P.J. v. West Virginia involves a nearly identical law. The West Virginia legislature enacted the Save Women’s Sports Act in 2021. The case arose when a biological male who identifies as female sued to compete on a girls’ middle school track team. The Fourth Circuit Court of Appeals held that the Save Women’s Sports Act somehow violates Title IX, a law passed to protect women’s educational and athletic opportunities. The majority conceded that states might sometimes be able to separate sports based on sex but said that would depend upon various factors such as a student’s “outward physical characteristics,” including “fat distribution, pelvic shape, and bone size.”

That rewrites Title IX, a statute designed to protect female athletes, invasively requiring schools to separate sports teams based on gender identification and physical characteristics. But Title IX was enacted by Congress in 1972 to give girls equal academic and athletic opportunities—not to let males who identify as female dominate their sports. Let’s not forget: even the dominant U.S. Women’s National Soccer team lost a match to a under-15 boys’ club. That’s why sex separated sports exist in the first place.

Yet some federal courts have exchanged common sense for ideology. The Constitution doesn’t require us to pretend that males and females are physically identical. And no interpretation of Title IX should destroy the very opportunities it was meant to secure.

Alliance Defending Freedom (where I work) intervened in both of these cases on behalf of female athletes. Madison Kenyon and Mary Kate Marshall, collegiate runners in Idaho, were forced to compete against a male athlete who identified as female—and fell in their rankings as a result. They watched as years of training and sacrifice were erased not by better athleticism, but by biological advantage. In West Virginia, Lainey Armistead, a former collegiate soccer player, stood up to defend West Virginia’s law.

In both cases, male athletes have been allowed to continue competing on female teams during ongoing litigation, displacing girls hundreds of times in competitions and records alike.

The stakes couldn’t be higher. These cases don’t just concern who gets to run track or play soccer. They represent a cultural and constitutional fork in the road. Under the current trajectory, every girl who dreams of athletic achievement risks being sidelined by a system that prioritizes ideology over fairness.

Will we continue to allow girls to be pushed off the podium and out of scholarship contention because courts refuse to recognize basic biology? Or will we reaffirm that separate spaces for women aren’t discriminatory—they’re necessary?

Twenty-seven states have laws like Idaho’s and West Virginia’s. All of them hang in the balance. By taking up these two cases, the Supreme Court has the chance to correct wayward lower court rulings, resolve critical constitutional and Title IX questions, and restore sanity to women’s sports.