The troubling implications of the Supreme Court's transgender athlete decision

On June 30, 2026, the last day of October Term 2025, the U.S. Supreme Court decided West Virginia v. B.P.J. and upheld state laws that prohibit transgender girls and women from participating in sports that correspond to their gender identity. Although the decision was not a surprise, it is troubling both in the pattern of the Supreme Court's failure to protect transgender individuals from discrimination and in its potential implications for how it treats sex discrimination under equal protection.

West Virginia v. B.P.J. involved a West Virginia law that prohibits transgender girls and women from participating in girls' and women's sports. It involved a transgender teenager who was diagnosed with gender dysphoria at age nine and began taking puberty-blocking hormones at age 10, so she never reached male puberty. She is now receiving estrogen therapy. She was barred from participating in sports because of the West Virginia law and sued. She prevailed in the lower courts, which ruled in her favor, concluding that the West Virginia law violated both equal protection and Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.), which prohibits sex discrimination by educational institutions receiving federal funds.

The Supreme Court reversed the lower courts and upheld the law. The Court ruled 6-3 that West Virginia did not violate equal protection and 9-0 that it did not violate Title IX. Justice Brett Kavanaugh wrote the majority opinion. Justices Clarence Thomas and Neil Gorsuch wrote concurring opinions. And Justices Sonia Sotomayor and Ketanji Brown Jackson wrote dissenting opinions, which Justice Elena Kagan joined.

All nine justices agreed that the West Virginia law was sex discrimination for purposes of the equal protection clause in that it mandated that sports teams be sex segregated. It is well established that sex discrimination by the government must meet intermediate scrutiny; that is, for the government action to be constitutional it must be substantially related to an important government purpose.

Justice Kavanaugh applied this test and concluded: "The Equal Protection Clause allows schools to maintain separate teams for female and male athletes. Schools may determine eligibility for women's and girls' teams based on biological sex." The Court said that the states had an important interest in barring transgender girls and women from participating because they would have a competitive advantage and because they would create a safety issue for other players.

Justice Sonia Sotomayor wrote the lead dissenting opinion. She said that the question in this case was whether discriminating against B.P.J. was justified. She explained that the issue is not whether excluding transgender girls and women generally is permissible, but whether it was shown that barring B.P.J. --a teenager who began puberty-blocking hormones at age 10--was needed to preserve competitive balance in sports or to prevent injuries. She said that this depends on a factual question and that the Court should have sent the case back to the lower courts to determine this. She wrote, "West Virginia, and any other state actor, can deny B. P. J. and others like her these experiences simply because it thinks they have an inherent athletic advantage, even if the facts show that they do not. In the end, to the Court, the facts do not matter, even though the consequences are serious."

The decision is troubling. First, it continues a pattern of the Supreme Court failing to provide any protection from discrimination for transgender individuals. In United States v. Shilling, in May 2025, the Court, in a ruling on its emergency docket, upheld President Trump's executive order barring transgender individuals from serving in the military. The Court stayed the lower court's preliminary injunction, which was based on its conclusion that transgender individuals have served with distinction and without issues in the armed forces.

In United States v. Skrmetti, in June 2025, the Court upheld a Tennessee law prohibiting gender-affirming care for transgender youth. Twenty-six states, all with Republican-controlled state legislatures, banned gender-affirming care for minors. In an opinion by Chief Justice John Roberts, the Court rejected the argument that such laws are discrimination based on sex or gender identity. Justice Sotomayor wrote a vehement dissent and stressed that there are approximately 110,000 transgender individuals in these states who will be prevented from having the medical care that they, their parents and their doctors want administered.

In November 2025, in Trump v. Orr, the Court reversed the lower courts to uphold a Trump executive order requiring that individuals' passports reflect their sex at birth, not their current gender identity. The purpose of a passport is to identify the individual at the time it is presented. The federal district court concluded that it makes sense to have it accurately represent the person's gender identity today. It only causes needless confusion when a transgender individual presents with a different gender than the sex listed on the passport. Also, the lower court found that the incongruity can subject transgender individuals to harassment, violence and discrimination.

In Mirabelli v. Bonta, in March 2026, the Supreme Court blocked a California policy that prohibited public schools from disclosing a student's gender identity to parents without the student's consent. The Court sided with religious parents, temporarily allowing educators to notify families about changes to a child's name, pronouns or gender presentation. The Supreme Court concluded that parents are likely to succeed on their First Amendment and Due Process claims, which argue that concealing this information violates their rights to oversee their children's upbringing and religious development.

In 1938, in United States v. Carolene Products, the Court famously explained that while courts usually should defer to the political process, deference is unwarranted when there is discrimination against "discrete and insular minorities," groups that are unlikely to be able to protect themselves against discrimination. Transgender individuals are such a minority.

Second, the Court weakened intermediate scrutiny which is used for sex discrimination. Justice Kavanaugh's majority opinion said that it was sufficient to focus on the overall justification for the law, there did not need to be focus on whether B.P.J. was unjustifiably discriminated against on account of her sex. But in many other cases the Supreme Court has rejected generalizations as a basis for sex discrimination and required individualized assessments. For example, in Orr v. Orr, the Court invalidated an Alabama law that allowed women, but not men, to receive alimony in case of divorce. The Court explained that "[u]nder the statute, individualized hearings at which the parties' relative financial circumstances are considered already occur. ... Needy males could be helped along with needy females with little if any additional burden." But in West Virginia v. B.P.J., the Court rejected the need for individualized analysis.

Also, the Court expressed the need for great deference to the West Virginia legislature, despite its saying that it was applying intermediate scrutiny. Heightened scrutiny is thought to require much more careful judicial consideration of whether there is adequate justification for the government's action. As Justice Sotomayor argued in her dissent, the Court's express deference is much more characteristic of rational basis review.

The Court's decision in West Virginia v. B.P.J. was no surprise given the Court's hostility to transgender rights in a series of cases over the last year. But how the Court came to its conclusions could matter greatly for the future.