AP Photo/Jae C. Hong, file AB Hernandez, a transgender student athlete in California, has won multiple state championships in girls’ categories. A very clear majority of American voters thinks that women and girls are entitled to female-only sports. On June 30, the U.S. Supreme Court decided in West Virginia v. B.P.J. (combined with the similar case Little v. Hecox) that states are permitted to maintain these categories. The court’s decision is a solid win for women and girls, but it does not go far enough.
Title IX of the Education Amendments of 1972 prohibits sex discrimination in the educational arena. The Equal Protection Clause of the 14th Amendment demands equal treatment under the law and, since 1971, has protected women and girls from unlawful sex discrimination by government entities.
Yet in recent years, male athletes have swept into female sports on the strength of their claims to what they refer to as an internal “gender identity” as a woman or girl.
Recognizing that sports involve our physical bodies rather than our self-perceptions, Idaho Governor Bradley Little (R) in March 2020 signed the Fairness in Women’s Sports Act, noting that “Having separate sex-specific teams furthers efforts to promote sex equality. Sex-specific teams accomplish this by providing opportunities for female athletes to demonstrate their skill, strength, and athletic abilities while also providing them with opportunities to obtain recognition and accolades, college scholarships, and the numerous other long-term benefits that flow from success in athletic endeavors.” West Virginia enacted a similar law in 2021.
Male athletes challenged both laws. One of them, B.P.J. claimed the West Virginia law violated both Title IX and the Equal Protection Clause. The plaintiff in Hecox claimed that the Idaho law violated only the Equal Protection Clause.
The court decided against the male athletes — 9 to 0 on Title IX, and 6 to 3 on their constitutional claim of equal protection. This is most welcome news for millions of female athletes who will now be protected from unfairness in competition and invasions of their privacy in changing facilities.
It is indisputable that male athletes have an athletic advantage over female athletes — in many sports and competitions, that is true even when high school boys are compared to world-class female athletes. A majority of the Supreme Court has now recognized this.
Importantly, the court acknowledged that sex is real and material. The majority states: “The term ‘sex’ in the 1972 Title IX statute, the 1974 Javits Amendment, and the 1975 Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex.” The 1974 Javits Amendment clarified that Title IX includes sports.
In the 27 states that have similar laws on the books, female athletes will now be able to compete exclusively with and against other female athletes. They will be free from having male athletes gawk at them in locker rooms. Male athletes, including male athletes who call themselves “transgender,” will still be able to compete in sports categories for men and boys.
But crucially, this decision only applies in those states that have already moved to protect the female category. It does not affect, for example, California, which continues to allow male athletes such as A.B. Hernandez to compete in sports intended for girls.
Title IX is a federal law. If sex is real under Title IX, why should the law apply in West Virginia but not in California? Are Maine girls less deserving of equal protection under the law than their counterparts in Montana or Mississippi? The court chose not to address these questions in the B.P.J. case, but there is no doubt that other litigation will continue until it does.
More broadly, this decision is an important confirmation that women and girls are complete human beings, distinct from men and boys. Women and girls are not merely men and boys with lower testosterone or a preference for feminine fashions. We are actually fully autonomous human beings.
In a concurring opinion that hints at future avenues to protect women and girls as a sex class, Justice Clarence Thomas said that he would rule explicitly that the category of “transgender people” is not specifically protected under the Constitution in the way that, for example, race, sex, and national origin are. Justices Amy Coney Barrett and Samuel Alito were silent on that question — a bit odd, given that they (along with Thomas) said something similar on the matter in the U.S. v. Skrmetti case that was decided in June 2025.
Radical feminists like myself hope that these justices and others will seize the opportunity when, inevitably, another case hinging on sex versus gender identity reaches the court.
Male athletes do not belong in women’s sports. Male inmates don’t belong in women’s prisons. Male residents don’t belong in women’s shelters. This is not because they claim or don’t claim a gender identity. It is because they are male, and women and girls are female.
If the law cannot acknowledge that women and girls exist as a discrete sex class, it cannot acknowledge that women and girls are fully human.
Kara Dansky is a civil rights attorney, feminist activist and author of a friend-of-the-court brief in the case on behalf of Women’s Declaration International USA. She serves on the board of directors of Democrats for an Informed Approach to Gender.
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