United States Supreme Court Rules Schools Can Bar Biological Males from Participating on Female Athletic Teams
In its recent ruling in West Virginia v. B.P.J. and Little v. Hecox, the United States Supreme Court ruled that biological males can be prohibited from participating on female athletic teams, closing the door on the intensely contested issue. North Carolina schools can continue to follow North Carolina’s 2023 law prohibiting transgender female students from participating on female sports teams without concern about potential conflicts with federal requirements.
Background
B.P.J. is a transgender student in West Virginia who has identified as female since third grade and has received puberty-blockers and estrogen hormone therapy. Lindsay Hecox is a transgender college student at Boise State University in Idaho. Both students were prohibited from trying out for female athletic teams because of laws in their respective states barring transgender females (biological males) from playing on female sports teams in K-12 schools through college.
The students filed lawsuits challenging their respective state laws, arguing that the laws violate their rights to equal treatment under the Fourteenth Amendment of the U.S. Constitution and discriminated against them on the basis of sex in violation of Title IX of the Education Amendments of 1972 ("Title IX").
Both cases had been barred by lower courts. Hecox’s case went up to the U.S. Court of Appeals for the Ninth Circuit, which agreed with Hecox and prohibited enforcement of Idaho’s law. Similarly, the U.S. Court of Appeals for the Fourth Circuit determined that West Virginia’s law was discriminatory and barred its enforcement.
Determining Legality of the State Laws
The cases were consolidated and heard by the U.S. Supreme Court, which overturned the Courts of Appeals decisions in a 6-3 decision. The Court’s majority determined that Title IX’s implementing regulations “expressly permit schools to maintain separate teams for ‘members of each sex’," and that “sex” refers to biological sex at birth. Thus, the Supreme Court concluded that the restrictions in the challenged state laws were consistent with Title IX and found them to be reasonable.
The Supreme Court reached the same conclusion on the Equal Protection issue, holding that the laws satisfy the “intermediate scrutiny” test of constitutionality because the “sex-based classification” is “substantially related” to achieving an 'important' government objective.” According to the Court, the objectives of the states’ laws include the “interests in safety and competitive fairness,” which the court noted is at issue because of the physical differences between the sexes in the context of sports. The Court held that the state laws were substantially related to those objectives.
What Does this Mean for North Carolina schools?
In 2023, North Carolina enacted its “Fairness in Women’s Sports Act,” which, just like the laws challenged in B.P.J. and Hecox, prohibits individuals of the “male sex” from participating on athletic teams designated for females. The law defines “sex” as “reproductive biology and genetics at birth.” It applies to public K-12 schools, private religious schools that are playing public school teams, any other nonpublic schools that are members of organizations that administer interscholastic athletics, and colleges and universities.
The B.P.J./Hecox decisions clarify any concern that the North Carolina law may be unconstitutional or contrary to Title IX.
As the laws regarding rights of transgender students continue to evolve, the education lawyers at Brooks Pierce remain available to provide support to schools as questions and needs arise.
This Alert provides an update on a legal development. It is not intended as legal advice. If you have questions, contact a member of our Brooks Pierce Education Team.