On June 30, 2026, the Supreme Court of the United States issued an opinion in two critical cases, Little v. Hecox and West Virginia v. B.P.J., both challenging state laws prohibiting transgender female athletes from competing in female-designated sports.
KingSpry’s Education Law Attorney and Managing Partner, Jessica F. Moyer, Esq., breaks down the cases, highlights key aspects of the Court’s opinions, and offers practical guidance to Pennsylvania schools navigating the developing federal policy relating to transgender student rights.
The Idaho Case: Little v. Hecox
Idaho Law. On March 30, 2020, Idaho Governor Bradley Little signed the Fairness in Women’s Sport Act (“FWSA”) into law. At the time, Idaho was the first state to categorically bar transgender female athletes from competing in female-designated student athletics. The FWSA contains several controversial provisions:
- Athletic teams “sponsored by a public primary or secondary school, a public institution of higher education, or any school or institution whose students or teams compete against a public school or institution of higher education” must be designated as for (1) “[m]ales, men, or boys,” (2)
“[f]emales, women, or girls,” or (3) “[c]oed or mixed,” based on biological sex.
- “Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.” However, the FWSA does not contain a comparable limitation for athletes wishing to participate on male-designated teams.
- Female student athletes, regardless of whether they are transgender, may be asked to undergo a sex verification process if their gender is “disputed.” Again, the FWSA does not contain a comparable sex verification process for male athletes whose sex is questioned.
- “Any student who is deprived of an athletic opportunity or suffers any . . . harm as a result of a violation of [the law]” has a private cause of action against the school or institution.
Facts of the Case. In April 2020, the case was initiated by two Plaintiffs against several defendants, challenging the constitutionality of the FWSA. Plaintiff Hecox is a transgender female athlete at Boise State University whose participation in collegiate athletics was jeopardized by the FWSA. Plaintiff Doe is a cisgender female athlete at Boise High School who was worried her competitors would dispute her sex, causing her to undergo the sex verification process authorized under the FWSA. Plaintiff Hecox is the only remaining Plaintiff in the case.
The Plaintiffs argued that the FWSA violates their constitutional rights, including equal protection, due process, and the right to be free from unconstitutional searches and seizures.
Lower Court Decisions. The trial court found that the Plaintiffs were likely to succeed in establishing that the FWSA is unconstitutional and, therefore, issued a preliminary injunction pending a trial on the merits. This meant that the FWSA could not be applied or enforced until its constitutionality was determined in a court of law. The appellate court ultimately agreed with the trial court, but remanded the case to consider the appropriate scope of injunctive relief. The Supreme Court eventually granted certiorari, agreeing to hear and review the lower court’s decision.
The West Virginia Case: West Virginia v. B.P.J.
West Virginia Law. In April 2021, West Virginia’s Save Women’s Sports Act (“SWSA”) became law. Similar to the Idaho law, the SWSA requires all athletic teams “sponsored by any public secondary school or a state institution of higher education” to “be expressly designated as ” either male, female, or coed, “based on biological sex.” The law also provides that female-designated teams should not be open to male students where selection is based on competitive skill or the activity is a contact sport.
Facts of the Case. In May 2021, the Plaintiff filed a lawsuit against several defendants, alleging that she was deprived of her equal protection rights guaranteed by the Fourteenth Amendment and her rights under Title IX.
The Plaintiff is a minor transgender student-athlete who expressed an interest in trying out for the girls’ cross country and track teams. At the time, the SWSA was not yet enacted, so the school informed the Plaintiff’s mother that her participation on the girls’ teams would depend on the outcome of the then-proposed law. Once the SWSA was enacted, the school notified the mother that the Plaintiff would not be permitted to try out for the teams.
Lower Court Decisions. The trial court initially sided with the Plaintiff, finding that she was likely to succeed in demonstrating that the SWSA is unconstitutional and violates Title IX. The court also permitted the Plaintiff to participate in school athletics in the same manner as other female classmates. However, the trial court later reversed course and found that the SWSA did not violate the Plaintiff’s rights under the Constitution or Title IX. The appellate court disagreed, concluding that the SWSA cannot “lawfully be applied to prevent a minor transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade from participating in her school’s cross country and track teams.” The Supreme Court eventually granted certiorari to hear and review the case.
SCOTUS Decision
The Court consolidated the cases to answer whether, under Title IX and the Equal Protection Clause of the Fourteenth Amendment, schools may “determine eligibility for women’s and girls’ sports based on biological sex.” A majority of the Justices said “yes.” The Court noted, however, that its decision does not answer whether “schools may allow biological males who identify as female to participate on girls’ and women’s sports teams.” Meaning, its decision is limited to whether eligibility for female-designated sports may be based on biological sex.
Title IX. In 1972, Title IX was enacted to prohibit sex-based discrimination in any Federally funded education program. Then, in 1974, the Javits Amendment was passed, directing the then-Department of Health, Education, and Welfare (“HEW”) to issue regulations with respect to sports. Pursuant to that directive, HEW issued regulations requiring schools to provide “equal athletic opportunity for members of both sexes.” Schools were also permitted to establish “separate teams for members of each sex where selection . . . is based upon competitive skill or the activity involved is a contact sport.”
The Court explained that the term “sex,” under Title IX, the Javits Amendment, and HEW’s regulations, “cannot plausibly be interpreted to refer to anything other than biological sex.” On that basis, it concluded that schools are not required to “make an exception . . . for biological males who identify as female and have taken puberty blockers or hormones.” It also reasoned that “[s]eparate sports teams for biological males and biological females are reasonable,” “[g]iven the inherent physical differences between the sexes.”
The Court referred to other institutions, including twenty-seven (27) States, the NCAA, the U.S. Olympic and Paralympic Committee, and the International Olympic Committee, which have all “drawn a line” prohibiting biological males from competing on women’s teams.
The Court briefly discussed the Plaintiff’s alternative arguments, noting that while “[the Plaintiff] may not want to compete against boys,” “[t]he regulations cannot and do not guarantee every student a spot on a team’s roster.” It also determined that Title VII of the Civil Rights Act and the Court’s previous decision in Bostock (prohibiting the termination of an employee based on gender identity) do not apply in the context of sports.
Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment prohibits any State from denying “any person within its jurisdiction the equal protection of the laws.” The Court explained that laws that classify individuals by sex are subject to intermediate scrutiny. Meaning, “[s]ex-based classifications are permissible only when the classification is ‘substantially related’ to achieving an ‘important’ government objective.”
The Court determined that both the Idaho and West Virginia laws survive intermediate scrutiny. It agreed with the States that there is an interest in “safety and competitive fairness” and that “limiting women’s and girls’ sports to biological females” is “substantially related to those interests.” “Therefore, schools may maintain women’s and girls’ sports for biological females” and “may determine eligibility for women’s and girls’ sports based on biological sex.”
Additionally, similar to its analysis under Title IX, the Court held that it need not make “individualized exemptions” for transgender athletes who take puberty blockers or hormones. Instead, “[t]he legislatures and the schools are better equipped—and under the Constitution, are the more appropriate entities—to assess the competing medical and scientific considerations and draw appropriate lines.”
Bottom Line for Schools
The Supreme Court has held that schools are permitted to determine eligibility for women’s and girls’ sports based on a student’s biological sex under Title IX and the Fourteenth Amendment. The Court, however, emphasized that “[n]o student-athlete on either side of the issue, whether a biological female or transgender [female], deserves to be ostracized or vilified.”
In light of this decision, we encourage schools to work with their administration and athletics departments to ensure student safety, well-being, and inclusivity to the maximum extent possible.
Schools must also note that other Federal, State, and local laws may offer protections against discrimination in student athletics. Moreover, Pennsylvania has not adopted any law prohibiting transgender student athletes from participating in sex-specific sports at this time.
Until further judicial or legislative directives are issued, schools are encouraged to:
- Monitor Federal, state, and local law closely.
- Consult with legal counsel before making decisions regarding a transgender student’s athletic eligibility.
- Prioritize student safety, privacy, and dignity.
- Communicate carefully with families and the community.
- Document all decisions and actions relating to a student’s athletic eligibility thoroughly.
The bottom line is that schools must be cautious, compliant, and adaptable until actionable guidance and direction are provided by Federal and Pennsylvania agencies and institutions.
If you have questions regarding the recent Supreme Court decision or your school’s compliance with antidiscrimination laws, KingSpry’s Education Law Practice Group and Investigations and Compliance ServicesTeams are prepared to assist you.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. If your school has a question, please consult legal counsel or one of the Education attorneys at KingSpry.
