Title IX on trial

America’s women and girls have fought for fairness and opportunity in athletics for decades. That is why Idaho and West Virginia enacted state laws that ensure athletic teams are based on biological sex. Yet the plaintiffs in two cases argued before the United States Supreme Court last week, Little v. Hecox and West Virginia v. B.P.J., claim that women’s sports laws violate both the Equal Protection Clause and Title IX—a statute intended to promote equal opportunities for women in academics and athletics.

That is wrong. As Idaho and West Virginia, along with attorneys from Alliance Defending Freedom (where I work), argued, those state laws reflect biological reality and common sense: Fair athletic competition requires separating males and females because of their physiological differences. Thankfully, a majority of the Supreme Court seems poised to hold that biological sex and not gender ideology should govern women’s sports.

Before the Supreme Court, the plaintiffs presented a surprisingly narrow argument. During oral argument, they conceded that both the Equal Protection Clause and Title IX permit sex-separated sports. Justice Kavanaugh wryly explained that the reason for that concession was obvious: biological sex matters. Men are generally bigger, stronger, and faster than women, and those differences matter in athletic competition.

Recognizing this biological reality, the plaintiffs also conceded that it was permissible for states to exclude biological males who identify as female, from female sports. They focused instead on an as-applied challenge, arguing that the Court must consider each individual athlete. They claimed that the Constitution requires states to permit boys to play on the girls’ team when the male athlete does not possess a competitive advantage over female athletes.

The Court seemed unpersuaded. The chief justice, as well as Justices Thomas, Alito, and Gorsuch were skeptical that a plaintiff could bring an individual or as-applied Equal Protection challenge. They pointed out such a claim would effectively convert intermediate scrutiny into strict scrutiny; it would require the state to demonstrate a perfect fit between its sports law and the protection of women’s equal opportunity. However, the Constitution permits states to separate based on sex, provided that the state can demonstrate that the separation serves an important governmental purpose and that the law is substantially related to achieving that purpose.

The flexibility in that test is important. It allows the government to recognize the biblical truth that the two sexes are not fungible and that the enduring biological differences between men and women are a cause for celebration.

The Court was also concerned about administrability. Plaintiffs’ test would require schools to assess whether any particular male athlete had a competitive advantage over female athletes. Plus, Justice Barrett pointed out that the plaintiffs’ theory would apply not only to transgender athletes who were taking testosterone suppressants but also to unathletic males. In short, a majority of the Supreme Court seemed skeptical that the Constitution requires states to permit male athletes to compete in female sports—even where those athletes have no competitive advantage.

A majority of the Supreme Court also seemed likely to uphold women’s sports laws under Title IX. That statute was enacted to provide equal academic and athletic opportunities for women. The states argued that a 1974 amendment to Title IX (the Javits amendment) authorized athletic teams separated based on “sex.” According to the states, in 1974, the term “sex” meant “biological sex.”

The Court seemed persuaded. Justice Gorsuch explained that, since Title IX is a spending clause statute, the states would have needed to be on notice if “sex” in 1974 meant something different that biological sex. Meanwhile, Justice Sotomayor noted that the Title IX regulations plainly permit sex separated sports. And Justice Kavanaugh went so far as to suggest that he believed that Title IX’s mandate for equal opportunities for women not only permitted states to separate sports by sex but required them to do so.

Ultimately, the attorneys for the plaintiffs seemed all but certain of defeat. Counsel for the plaintiff in the Idaho case explained that there would not be a trial below (because Hecox says he won’t play sports any longer) even if Hecox “happens somehow to win the case.” Similarly, the plaintiff in the West Virginia case urged the Court to rule narrowly on sports and leave for another day questions about sex-separate locker rooms and showers.

The stakes for women’s athletics could not be higher. If the Supreme Court holds that states must allow men and boys to compete against women and girls, it risks unraveling the protections Title IX was enacted to ensure. As Justice Kavanaugh—who coaches girls’ basketball—noted during oral argument, Title IX has led to “inspiring” growth in women’s athletics. But sports are also zero-sum: permitting boys to compete in girls’ sports often means that a girl gets cut from the team, fails to earn a scholarship, or doesn’t stand on the podium.

As Kavanaugh explained, those harms cannot be swept aside. Girls deserve a chance not only to compete but also a fair shot at winning. And nothing in the Constitution or Title IX forbids states from ensuring them that opportunity.