{"id":494,"date":"2026-08-11T17:32:28","date_gmt":"2026-08-11T17:32:28","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=494"},"modified":"2026-08-11T17:32:28","modified_gmt":"2026-08-11T17:32:28","slug":"weakening-the-protection-against-sex-discrimination","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=494","title":{"rendered":"Weakening the protection against sex discrimination?"},"content":{"rendered":"
\n

Few were surprised by the court\u2019s ruling in West Virginia v. B.P.J.<\/em> upholding a West Virginia law prohibiting transgender girls and women from participating in sports corresponding to their gender identity. How the court justified its ruling, however, has troubling implications. The court analyzed the West Virginia law under equal protection as sex discrimination, not as gender identity discrimination. But the court departed from traditional principles that it had previously articulated for how such claims are to be analyzed. In this way, there should be great concern that the court has weakened the Constitution\u2019s protection against sex discrimination.<\/p>\n

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***<\/p>\n

West Virginia v. B.P.J.<\/em> 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 female hormones. B.P.J. 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 the equal protection clause of the 14th Amendment and Title IX of the Civil Rights Act, which prohibits sex discrimination by educational institutions receiving federal funds.<\/p>\n

The court unanimously rejected her Title IX claim, stressing that the statute expressly allows for sex segregated sports teams. But the court split 6-3 as to whether the West Virginia law violated equal protection. Justice Brett Kavanaugh wrote for the court and said that the case was about sex discrimination: B.P.J. was kept from playing on the girls\u2019 team because of her biological sex.<\/p>\n

It is well established that sex discrimination by the government must meet intermediate scrutiny under equal protection; that is, for the government action to be constitutional it must be substantially related to an important government purpose. The court said that the state had an important interest in barring transgender girls and women from participating in sports corresponding to their gender identity because they would have a competitive advantage and because they would create a safety issue for other players. The court also said that transgender girls would take spaces on girls\u2019 teams that otherwise would go to cisgender girls. Kavanaugh wrote:<\/p>\n

Based on all of the above, the States argue\u2014and we agree\u2014that the interests in safety and competitive fairness are important for purposes of equal protection analysis. And the States\u2019 sex-based classification\u2014limiting women\u2019s and girls\u2019 sports to biological females\u2014is substantially related to those interests. Therefore, schools may maintain women\u2019s and girls\u2019 sports for biological females. In other words, schools may determine eligibility for women\u2019s and girls\u2019 sports based on biological sex.<\/p><\/blockquote>\n

Although the majority did not say so, it actually departed from the ways in which it has provided protection against sex discrimination under equal protection. First, the court did not mention the prior decisions which said that sex discrimination is allowed only if there is an \u201cexceedingly persuasive justification.\u201d In the 1996 case of United States v. Virginia<\/em>, the Supreme Court declared unconstitutional the exclusion of women by the Virginia Military Institute. Justice Ruth Bader Ginsburg applied intermediate scrutiny and said that \u201c[p]arties who seek to defend sex-based government action must demonstrate an \u2018exceedingly persuasive justification\u2019 for that action.\u00a0.\u00a0.\u00a0. The burden of justification is demanding and it rests entirely on the State.\u201d Ginsburg said that the justification \u201cmust not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.\u201d<\/p>\n

Thus, the court was requiring more than traditional intermediate scrutiny \u2013 what some have labeled \u201cintermediate scrutiny plus.\u201d But in B.P.J.<\/em>,by omitting the language requiring an \u201cexceedingly persuasive justification\u201d for sex discrimination, it would appear the court was implicitly changing the law and lessening the constitutional protection against such discrimination.<\/p>\n

Additionally, Kavanaugh\u2019s majority opinion said that it was sufficient to look at the overall justification for the law, and, given this, there did not need to be a 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 1979\u2019s Orr v. Orr<\/em>, the court invalidated an Alabama law that allowed women, but not men, to receive alimony in case of divorce. The court explained that \u201c[u]nder the statute, individualized hearings at which the parties\u2019 relative financial circumstances are considered already <\/em>occur. . . . Needy males could be helped along with needy females with little if any additional burden on the State.\u201d But in B.P.J.<\/em> the court rejected the need for an individualized analysis as to whether B.P.J. would have a competitive advantage or pose a safety risk to other players by virtue of being transgender.<\/p>\n

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This was a key point made by Justice Sonia Sotomayor in a dissenting opinion joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor 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. \u2013 a teenager who began puberty-blocking hormones at age 10 \u2013 was needed to preserve competitive balance in sports or to prevent injuries. She said that this is a factual question and that the court should have sent the case back to the lower courts to determine this. She wrote:<\/p>\n

the majority concludes that B. P. J.\u2019s claim fails regardless of the unresolved factual dispute over whether transgender girls are similarly situated to cisgender girls for the reasons B. P. J. gives. That is wrong. As the Court’s precedents recognize, factual disputes like this one relate to the fit of the classification and whether it survives heightened scrutiny.<\/p><\/blockquote>\n

Third, the court expressed the need for deference to the West Virginia legislature as to whether the bar on transgender girls and women from participating in girls\u2019 and women\u2019s sports was justified. The court said that the government did not need to prove that B.P.J., or those in her situation, would pose a safety risk or have a competitive advantage. The government could make an overall judgment. And the court said that even if such proof was required, there is sufficient medical uncertainty that there should be deference to the West Virginia legislature.<\/p>\n

The court stated: \u201cIn any event, the plaintiffs\u2019 premise is the subject of ongoing medical and scientific debate and is not settled in their direction at this time. States and leading athletic organizations disagree with the plaintiffs and have concluded that biological males still retain a physical advantage after taking puberty blockers and hormones.\u201d The court recognized that \u201c[t]he plaintiffs counter with arguments and studies of their own.\u00a0But in assessing state and federal laws passed under circumstances of \u2018medical and scientific uncertainty,\u2019 this Court has often said that the Judiciary must be cautious about swooping in and invalidating laws. The legislatures, we have emphasized, maintain \u2018wide discretion to pass legislation\u2019 in those circumstances.\u201d<\/p>\n

Yet such deference to the legislature is characteristic of rational basis review (in which a law will be upheld if it is rationally related to a legitimate government purpose), not intermediate scrutiny. Sotomayor explained this well: <\/p>\n

[T]he majority suggests that, even if relevant, the factual dispute implicates scientific uncertainty and that West Virginia’s decision is thus entitled to conclusive deference. Here, too, the majority missteps, invoking cases applying rational-basis review, citing extra-record evidence, and ignoring critical context merely because it is inconvenient.<\/p><\/blockquote>\n

Perhaps West Virginia v. B.P.J. <\/em>will be regarded as a case about applying sex discrimination principles to discrimination based on gender identity and not carry over to sex discrimination more generally. But the court could have decided this as a case about gender identity discrimination. It chose not to do so and instead to analyze the West Virginia law as sex discrimination under intermediate scrutiny. By doing so, the court raises real concern that it has watered down intermediate scrutiny and lessened the protections against sex discrimination. In that, the case may take on even greater significance than its critics have recognized.<\/p>\n

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Few were surprised by the court\u2019s ruling in West Virginia v. B.P.J. upholding a West Virginia law prohibiting transgender girls and women from participating in sports corresponding to their gender identity. How the court justified its ruling, however, has troubling implications. 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