West Virginia v. B.P.J.

    Issues

    May a state prevent transgender girls who have not undergone male puberty from participating in girls’ sports?

    Oral argument:
    January 13, 2026
    Court below:
    United States Court of Appeals for the Fourth Circuit

    This case asks the Court to decide whether states may prevent transgender girls from participating in girls’ sports. West Virginia argues that its statute does not violate Title IX because it makes no distinction on the basis of gender identity and does not violate the Equal Protection Clause because it passes intermediate scrutiny based on the state’s interest in competitive fairness. B.P.J. argues that the statute violates Title IX by discriminating against transgender girls and violates the Equal Protection Clause because the statute is not substantially related to the state’s goal of competitive fairness. This case raises significant concerns about fairness within women’s sports and the safety of transgender and cisgender athletes.

    Questions as Framed for the Court by the Parties

    (1) Whether Title IX of the Education Amendments of 1972 prevents a state from consistently designating girls' and boys' sports teams based on biological sex determined at birth; and (2) whether the equal protection clause of the 14th Amendment prevents a state from offering separate boys' and girls' sports teams based on biological sex determined at birth.

    Facts

    In April 2021, West Virginia passed H.B. 3293 (the “Act”), a statute preventing students who were biologically male at birth from participating in contact or competitive sports designated for female students. 

    Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), states that “[n]o person … shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  To make out a claim under this statute, a party must show that they were treated worse than similarly situated individuals because of their biological sex.   The Equal Protection Clause prevents states from denying similarly situated people the equal protection of the law based on a suspect classification.

    Respondent B.P.J. is a transgender girl who socially transitioned in third grade.  B.P.J. began taking estradiol in sixth grade, resulting in her having the hormones associated with a typical female puberty. She did not undergo male puberty, so she did not experience the physical changes typical of male puberty. Before the Act was passed, B.P.J. would have been allowed to participate in girls’ sports with her school’s permission unless another school contested her eligibility and the West Virginia Secondary Schools Athletic Commission found that her participation threatened competitive equity or the safety of competitors.

    B.P.J., through her mother, challenged the Act on Title IX and Equal Protection grounds in June 2021, seeking a preliminary injunction that would allow her to participate in middle school girls’ sports. The district court granted the injunction, allowing her to participate in cross country and track and field. After discovery and summary judgment proceedings, the district court granted summary judgment to West Virginia on both of B.P.J.’s claims in January 2023, dissolving the injunction. The United States Court of Appeals for the Fourth Circuit granted an injunction pending appeal, allowing B.P.J. to continue participating in sports.

    The Fourth Circuit later vacated the district court’s summary judgment decision on the Equal Protection claim, holding that it was premature and that there remained a genuine issue of material fact as to whether transgender girls who have not gone through male puberty have a performance advantage over other girls.  The Fourth Circuit noted that unlike the Equal Protection Clause, Title IX does not allow a state to justify discrimination based on a relationship to state interests. The Fourth Circuit found that there was no genuine issue of material fact on the Title IX claim because B.P.J. could demonstrate harm resulting from worse treatment based on sex. The Fourth Circuit reversed summary judgment on the Title IX claim and instructed the district court to enter summary judgment for B.P.J.

    West Virginia petitioned the Supreme Court of the United States for certiorari, which was granted on July 3, 2025.

    Analysis

    TITLE IX

    West Virginia and other state officials (“West Virginia”) argue that Title IX allows, and in some cases requires, sex-based distinctions to guarantee girls equal access to sports.   West Virginia asserts that Title IX’s prohibition of sex discrimination does not prevent states from drawing sex-based distinctions; otherwise, women’s sports in general would be prohibited. West Virginia reads Title IX to apply to groups, not to individuals. Further, West Virginia interprets Title IX’s bar on discrimination “on the basis” of sex to mean discrimination which is solely motivated by sex. Referencing several sex distinctions listed in Title IX, including separate dormitories and locker rooms, West Virginia argues that these examples show that sex distinctions are endorsed by the statute. West Virginia further contends that Title IX only forbids discrimination based on biological sex, not based on gender identity. West Virginia argues that the Act does not discriminate based on biological sex or gender because no biological male, regardless of gender identity, may participate in girls’ sports. West Virginia posits that the innate genetic differences between boys and girls necessitate such a sex distinction to preserve fair opportunities in girls’ sports. West Virginia defines discrimination as occurring when one is treated worse than others who are similarly situated and argues that transgender girls are not similarly situated to other girls. West Virginia draws this distinction based on athletic differences which result from male puberty, pointing out that, on average, male athletes possess athletic advantages. Because West Virginia believes that transgender girls are similarly situated to boys, it argues that they may be excluded from girls’ sports without violating Title IX.

    B.P.J. argues that Title IX forbids the kind of distinction drawn by the Act.  B.P.J. reads Title IX to bar discrimination against individuals, not only against groups. B.P.J. interprets Title IX’s bar on discrimination “on the basis of” sex to impose a but-for cause standard, as opposed to West Virginia’s sole-cause interpretation. B.P.J.points out that the language “on the basis of sex” is often interpreted by courts to require but-for cause. Furthermore, B.P.J. highlights how other anti-discrimination statutes that use comparable language to Title XI, such as Title VII, only require but-for causation. B.P.J. argues that discrimination against transgender people is sex discrimination by analogizing to Bostock v. Clayton County. In Bostock, the court concluded that under Title VII, discrimination against transgender employees is sex discrimination. Here, B.P.J. argues that the same reasoning should apply, rendering the Act sex discrimination. B.P.J. asserts that she cannot realistically be expected to participate in boys’ sports, both because she has completely socially transitioned and because she has gone through female puberty and the physical changes typical of female puberty. B.P.J. analogizes giving her the option to compete on boys’ sports teams with giving gay individuals the option to marry someone of a different sex, positing that neither is a real pathway to equal treatment.

    EQUAL PROTECTION CLAUSE

    West Virginia explains that the Equal Protection Clause requires all similarly situated people to be treated alike, requiring a plaintiff to show both discriminatory purpose and disparate impact. West Virginia argues that transgender girls are not similarly situated to female athletes because they have biological advantages obtained even before male puberty. West Virginia points out that if boys and girls were similarly situated in the context of youth sports, then having separate teams for boys and girls would itself violate the Equal Protection Clause. West Virginia further contends that gender identity does not change whether a plaintiff is similarly situated in this context because it does not impact biology or athletic performance. The Act, according to West Virginia, does not classify based on gender identity but rather based on biological sex. Thus, West Virginia argues that this sex-based classification serves the legitimate purpose of providing equal athletic opportunities for girls. West Virginia additionally asserts that, absent a showing of discriminatory intent, disparate impact alone is insufficient to make out a successful claim under the Equal Protection Clause. Next, West Virginia clarifies that the Act satisfies intermediate scrutiny, meaning that the state can show the sex-based distinction serves important government objectives by means which are substantially related to the goal. West Virginia argues that this analysis should be applied to the statute, rather than to a specific plaintiff. West Virginia explains that applying intermediate scrutiny to each person affected by a given policy would transform it into strict scrutiny, as it would require more than a substantial relationship between the goal and the means of accomplishing it. Finally, West Virginia asserts that even if the court were to find that the Act classified based on gender identity, the Act would satisfy rational-basis review. West Virginia notes that rational-basis review is extremely deferential, and that the same explanation that satisfies intermediate scrutiny would provide a rational basis for the Act.

    B.P.J. responds by asserting that the Act draws a sex-based classification and cannot satisfy intermediate scrutiny. B.P.J. highlights that in the current procedural posture, a summary judgment motion, there remains a disputed question of material fact as to whether transgender girls in B.P.J.’s position have any athletic advantages derived from their sex assigned at birth. Although the Act does not use the term transgender, B.P.J. argues that the Act functionally discriminates based on transgender status because it bases participation solely on sex at birth, singling out people who do not identify with their birth sex. B.P.J. also points out that the Act was passed solely due to its effects on transgender girls, because West Virginia already excluded boys from girls’ teams before the Act was implemented. B.P.J. further asserts that whether the challenge is characterized as a facial or as-applied challenge is irrelevant, because the relevant question in either case is whether the Act can be applied to transgender girls like B.P.J. B.P.J. contends that transgender status satisfies the criteria for receiving heightened scrutiny because transgender people have historically faced discrimination, their defining characteristic “bears no relation to their ability to contribute to society,” they “are defined by obvious, immutable, or distinguishing characteristics,” and they are a minority group that lacks political power. B.P.J. argues that the Act is not substantially related to West Virginia’s asserted interest in providing safe and fair opportunities for girls because the biological characteristics West Virginia selected are not substantially related to the state’s interest. B.P.J. highlights this lack of a substantial relationship by pointing out that the statute is not limited to particular sports or competitive settings but completely excludes transgender girls from a school’s entire athletic program. B.P.J. explains that the Act excludes transgender girls in every circumstance, even where no competitive advantage exists. Additionally, B.P.J. argues that even under rational basis review the Act fails because the statute excludes transgender girls when there are no athletic advantage, safety, or fairness interests at stake.

    Discussion

    FAIRNESS IN GIRLS’ AND WOMEN’S SPORTS

    Ninety-six current and former members of the West Virginia legislature (the “legislators”), in support of West Virginia, argue that H.B. 3293 protects fair competition in women’s sports. The legislators highlight how physiological differences between sexes generally favor men in competitive athletic environments. These physical differences, according to the legislators, are illustrated by equipment differences in boys’ and girls’ sports, such as boys’ teams using higher nets in volleyball and larger balls in basketball. The legislators also reference findings that men generally have greater muscle mass, bone density, and oxygen uptake. Further, the legislators point to a specific transgender track athlete, Andraya Yearwood, who won multiple state competitions while garnering attention for appearing more physically imposing than cisgender girls in the field. Thus, without H.B. 3293, the legislators assert that cisgender girls may be unfairly impacted, missing out on opportunities for team membership or collegiate scholarships. A group of 124 female athletes, including thirty-one Olympians, (“thirty-one Olympians”) contend that forcing women to compete with transgender athletes degrades equality between men’s and women’s sports. Thirty-one Olympians argue that combined-sex competitions do not exist because such competitions would demean women. Thirty-one Olympians further assert that a separate and insular women’s sports environment promotes gender equality by providing a space for women to celebrate and compete with their independent physical capabilities. Finally, six sport physiology experts argue that hormonal interventions do not adequately level the playing field, highlighting that testosterone suppression does not cause people to shrink in height, and that while muscle mass decreases with testosterone suppression, it does not erase the performance gap between transgender and cisgender women. 

    Andraya Yearwood, in support of B.P.J., argues that the competitive advantage attributed to transgender athletes, including herself, is overstated. Yearwood asserts that, while amici of petitioners use her as an example of transgender women exercising an improper competitive advantage in women’s sports, they fail to contextualize her victories with losses in other track and field events. Yearwood references her lack of state records or presence on a national track scene, arguing that her full record in context undermines claims that transgender women are inherently superior athletes and that the attention she receives is sensationalized. Dr. Joanna Harper and two other exercise science scholars (“Dr. Harper”) assert that there is no inherent athletic advantage for transgender women before the onset of puberty. Dr.Harper notes that each study purporting to prove an inherent athletic advantage for prepubescent boys over girls fails to account for social factors favoring boys for encouragement and training in athletics. GLBTQ Legal Advocates and Defenders (“GLAD”) contends that when transgender girls take puberty blockers before developing male characteristics, they do not possess a material athletic advantage over cisgender competitors. Therefore, GLAD argues that West Virginia’s statistical evidence cannot justify applying a participation ban for these athletes. Ten coaches, teammates, competitors, and allies of transgender athletes (“Allies”) assert that transgender participation in women’s sports is beneficial rather than harmful to the sports themselves. ,Allies emphasize that there are tactical sports where physiological differences are not determinative of a competitive advantage in the sport. According to Allies, barring transgender participation will incentivize athletes to accuse their opponents of being transgender, subjecting them to invasive investigations.

    SAFETY AND WELFARE OF CHILDREN

    Liberty Counsel, in support of West Virginia, asserts that the inclusion of transgender women in women’s sports causes cisgender women psychological harm from sharing designated private areas such as locker rooms or bathrooms. A coalition of California school districts (“John Adams Academies”) adds that including transgender athletes in women’s sports puts cisgender women at an increased risk of injury while playing. John Adams Academies asserts that if transgender women are included in women’s sports, cisgender women are more likely to leave sports teams out of fear of serious injuries like concussions or broken bones. John Adams Academies further argues that inclusion of transgender women risks psychological harm because of inappropriate contact with cisgender teammates or opponents. Additionally,Dr. Emma Hilton and the International Consortium on Female Sport (“ICFS”) contend that sex verification screening would be nonintrusive and accurate for the purposes of categorizing student athletes for gendered sports teams. ,ICFS maintains sex verification is comparable to existing practices like drug testing and pre-participation physicals and would not violate the privacy of athletes.

    Fifteen states and the District of Columbia (the “States”), in support of B.P.J., assert that protecting transgender youth from discrimination promotes their development and society’s well-being. The States highlight a large discrepancy of reported mental health issues between LGBTQ youth who have experienced discrimination in school and those who have not. The States further assert that sports participation is linked to higher academic achievement, as well as positive physical and psychological health indicators. Advocates for Girls’ and Women’s Rights (“AGWR”) argues that H.B. 3293 injures girls and women by being based on harmful stereotypes. AGWR asserts that enforcement of H.B. 3293 will enable schools to scrutinize or challenge the sex of any girl based on her outward appearance or positive contributions to athletic programs, which will in turn negatively impact her mental health. AGWR further contends that H.B. 3293 will disparately impact women of color who are more frequently the subject of criticism or questioning about their sex. Additionally, AGWR argues that H.B. 3293 forces girls and women to encounter “invasive and coercive” sex verification protocols as a prerequisite for participation.

    Conclusion

    Authors

    Written by:    Matthew Charles and Sam Schoenberg

    Edited by:      Ally Fertig

    Additional Resources