West Virginia v. B. P. J.West Virginia v. B. P. J.
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WEST VIRGINIA ET AL. v. B. P. J., BY HER NEXT FRIEND AND MOTHER, HEATHER JACKSON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24–43. Argued January 13, 2026—Decided June 30, 2026*
The question before the Court in these cases is whether, under
In 2021, West Virginia enacted the Save Women’s Sports Act, which prohibits male students from playing on female teams.
*Together with No. 24–38, Little, Governor of Idaho, et al. v. Hecox et al., on certiorari to the United States Court of Appeals for the Ninth Circuit.
Syllabus
In 2020, Idaho enacted the Fairness in Women’s Sports Act, which prohibits male students from participating on female teams.
Held:
Title IX allows schools to provide separate women’s and men’s sports teams defined by biological sex, and West Virginia has permissibly maintained female sports for biological females consistent withTitle IX . Pp. 8–14.Title IX provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”20 U. S. C. §1681(a) . Two years afterTitle IX became law in 1972, Congress passed the Javits Amendment, which directed the then-Department of Health, Education, and Welfare (HEW) to promptly issue “regulations implementing the provisions of”Title IX with respect to “the prohibition of sex discrimination.” §844, 88 Stat. 612. The amendment further specified that the regulations “shall include with respect to” “athletic activities reasonable provisions considering the nature of particular sports.”Ibid. (emphasis added). In 1975, HEW promulgated comprehensive regulations requiring that schools provide “equal athletic opportunity for members of both sexes” and authorizing “separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”34 CFR §§106.41(b) ,(c) . Pp. 8–10.- The term “sex” in
Title IX , the Javits Amendment, and theTitle IX regulations cannot plausibly be interpreted to refer to anything other than biological sex. The ordinary meaning of the term “sex” atthe time of enactment in the early 1970s was biological sex and not gender identity, particularly in the sports context. See, e.g., Frontiero v. Richardson, 411 U. S. 677, 686 (“sex” is “an immutable characteristic”). In addition, the Title IX regulations allowed separate sports teams precisely because of the inherent physical differences between biological men and biological women.While B. P. J. agrees that
Title IX permits schools to maintain separate female and male teams and to prohibit most biological males from playing on women’s and girls’ teams, B. P. J. argues that schools must make an exception to that general rule for biological males who identify as female and have taken puberty blockers or hormones. But the texts ofTitle IX , the Javits Amendment, and theTitle IX regulations do not support that argument, and do not speak to that issue in a way that could properly be interpreted to require schools to allow biological males to participate in women’s and girls’ sports.B. P. J. argues that if the regulations authorize a school to limit female sports teams to biological females without exception, then the regulations are not “reasonable” as required by the Javits Amendment, §844, 88 Stat. 612. The Court concludes that separate sports teams for biological males and biological females are reasonable given the inherent physical differences between the sexes. In assessing the reasonableness of the regulations, the Court must recognize the distinctiveness of competitive sports—and the safety and competitive fairness issues that can arise when females are forced to compete against males. In recent years, 27 States and various sports-governing bodies have all drawn the same line. Pp. 10–12.
- The Court rejects B. P. J.’s two other
Title IX -related arguments. B. P. J. contends that the school’s policy violatesTitle IX because the policy effectively excludes B. P. J. from any competitive sports teams at the school. While it is an unhappy occasion whenever a student who wants to play school sports cannot do so, theTitle IX regulations guarantee only “equal athletic opportunity.”B. P. J. relies on
Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e–2(a)(1) , and Bostock v. Clayton County, 590 U. S. 644, as support for interpretingTitle IX to require that schools allow biological males on female teams. Title VII and Bostock are not relevant in this very different statutory and factual context of sports. Pp. 13–14.
- West Virginia and Idaho did not violate the
Equal Protection Clause of the Fourteenth Amendment by maintaining female sports teams for biological females. Pp. 14–25, 27–29.- The challenged West Virginia and Idaho laws make sex-based classifications in limiting female teams to biological females. Under this Court’s equal protection precedents, sex-based classifications are permissible only when the classification is “substantially related” to
achieving an “important” government objective. United States v. Skrmetti, 605 U. S. 495, 510 (quotation marks omitted). The States argue—and the Court agrees—that the interests of safety and competitive fairness are important interests for purposes of equal protection analysis. And the States’ sex-based classification—limiting women’s and girls’ sports to biological females—is substantially related to those interests. See Ibid. Schools may determine eligibility for women’s and girls’ sports based on biological sex. Pp. 14–17. - Respondents acknowledge that States may exclude most biological males from women’s and girls’ sports, given the general physical differences between males and females. The
Equal Protection Clause does not prohibit the States from applying that same principle to all biological males, including those who identify as female. States are not required to conduct an individual-by-individual comparison of the physical and athletic capabilities of all biological males in order to satisfy intermediate scrutiny. Under the intermediate scrutiny test the “validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government’s interests in an individual case.” Ward v. Rock Against Racism, 491 U. S. 781, 801. Intermediate scrutiny permits a sex-based classification that, as here, is “not invidious, but rather realistically reflects the fact that the sexes arе not similarly situated in certain circumstances.” Michael M. v. Superior Court, Sonoma Cty., 450 U. S. 464, 469 (plurality opinion).The as-applied argument that the States’ sex-based classification is generally permissible—but not as applied to those biological males such as B. P. J. and Hecox who identify as female and have taken puberty blockers or hormones—fails for the same reasons. Particularly in the sports context, determining the effects of the puberty blockers and hormones taken by transgender athletes—and then comparing each of those transgender athletes’ abilities to those of other individual biological males and individual biological females in the relevant sport—would be an almost impossible task for a judge to perform on an equitable basis. The 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.
The argument that the challenged laws unconstitutionally discriminate against transgender individuals is unavailing. Under this Court’s decision in Skrmetti, the challenged laws do not classify based on gender identity or transgender status, see 605 U. S., at 517, but instead on the basis of biological sex. The classification at issue readily satisfies rational basis review or intermediate scrutiny. Pp. 17–24.
- The underlying medical and scientific premise of the equal
protection challenge here is that at least some biological males who identify as female and take puberty blockers or hormones do not retain physical advantages over biological females. That premise is the subject of ongoing medical and scientific debate. Even if true, that empirical claim would not alter the equal protection conclusion set forth above. Pp. 24–26.
- The challenged West Virginia and Idaho laws make sex-based classifications in limiting female teams to biological females. Under this Court’s equal protection precedents, sex-based classifications are permissible only when the classification is “substantially related” to
No. 24–43, 98 F. 4th 542, and No. 24–38, 104 F. 4th 1061, reversed and remanded.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, GORSUCH, and BARRETT, JJ., joined. THOMAS, J., and GORSUCH, J., filed concurring opinions. SOTOMAYOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which KAGAN and JACKSON, JJ., joined. JACKSON, J., filed an opinion concurring in the judgment in part and dissenting in part.
SUPREME COURT OF THE UNITED STATES
Nos. 24–43 and 24–38
WEST VIRGINIA, ET AL., PETITIONERS
24–43 v.
B. P. J., BY HER NEXT FRIEND AND MOTHER, HEATHER JACKSON
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRADLEY LITTLE, GOVERNOR OF IDAHO, ET AL., PETITIONERS
24–38 v.
LINDSAY HECOX, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 30, 2026]
JUSTICE KAVANAUGH delivered the opinion of the Court.
To provide equal opportunity for female athletes, schools do not merely maintain, for example, one soccer team, one basketball team, one ice hockey team, and one lacrosse team that are equally open to female and male athletes. That approach would deny equal opportunity to female athletes because, as all agree, females and males have
Those “[p]hysical differences between men and women” are “enduring.” United States v. Virginia, 518 U. S. 515, 533 (1996). The differences include, among other things, height, weight, strength, speed, endurance, and jumping ability. Therefore, in contact sports, forcing female athletes to compete against males can create significant safety risks. And in virtually all competitive sports, forcing female athletes to compete against males can undermine competitive fairness.
To ensure equal opportunity for female athletes, schools therefore typically maintain separate women’s and men’s sports teams. Women’s teams compete against other women’s teams, and men’s teams compete against other men’s teams. To ensure equal opportunity,
In recent years, some biological males who identify as female have sought to play on women’s or girls’ sports teams. That modern development has triggered national and international concerns about safety and competitive fairness for female athletes, as well as related worries about preserving equal opportunity for women and girls to play sports. For those reasons, 27 States—as well as the International Olympic Committee, the United States Olympic and Paralympic Committee, and the NCAA—have banned all biological males from competing in women’s and girls’ sports.
These cases concern two of those state laws, from West Virginia and Idaho. The question before the Court is: Under
I
A
Prior to
The low female participation rate was the byproduct of overt sex discrimination, as well as mistaken stereotyping of American women and girls. Men and boys usually received more encouragement and more opportunities to play sports than women and girls. And male sports teams typically received more funding and resources than female teams. As of 1972, for example, women’s sports reportеdly accounted for only 2% of annual college athletics spending. 130 Cong. Rec. S4601 (Apr. 12, 1984) (remarks of Sen. Stevens).
In 1972, in a belated but historic response to persistent discrimination against women in educational institutions, including in athletics, Congress passed and President Nixon signed
Few laws have been as effective and consequential in day-to-day American life as
Participation in sports has enabled countless American women and girls to be on a team, to take part in the human drama of athletic competition, to overcome the agony of defeat and know the thrill of victory. And those lessons and experiences in sports have empowered millions of American women who have gone on to thrive in all aspects of American life.
B
Over the past several years, some biological males who identify as female have sought to play various women’s and girls’ sports. Some of them have taken, as relevant here: (i) puberty-blocking drugs that suppress the rise of puberty-inducing hormones; or (ii) cross-sex hormones and other drugs, such as those that suppress testosterone or increase estrogen, sometimes called hormone therapy. (For ease of reference, we will refer to puberty blockers and hormones.) Those biological males contend that by taking puberty blockers or hormones, they can mitigate the physical advantages inherent to their biological sex, as relevant to sports.
Intense policy and legal disputes have ensued over whether biological males should be allowed to play on women’s and girls’ sports teams. Many athletic organizations and States have recently acted decisively to prohibit all biological males from participating in women’s sports—that is, to limit women’s and girls’ teams to biological females.
In 2025, the NCAA prohibited biological male students, including those who identify as female and have taken hormones, from competing on women’s teams. The U. S. Olympic and Paralympic Committee followed suit, likewise prohibiting biological males from competing in women’s sports. NCAA, Participation Policy for Transgender Student-Athletes (Feb. 6, 2025); USOPC, Athlete Safety Policy §3.3 (June 18, 2025).
More recently, the International Olympic Committee similarly limited Olympic participation in women’s sports to biological females. The IOC did so in order to “protect fairness in such sports and events, as well as safety particularly in contact sports.” The IOC found that biological males possess a “performance advantage in all sports and events that rely on strength, power, and/or endurance,” including a “20+ per cent” advantage in “most throwing and jumping events,” a “10-12 per cent” advantage in “most running and swimming events,” and a “greater than 100 per cent” advantage in “events that involve explosive power.” IOC, Policy on the Protection of the Female (Women’s) Category in Olympic Sport and Guiding Considerations for International Federations and Sports Governing Bodies 2, 3 (Mar. 26, 2026).
Moreover, the IOC found that “athletes retain Male performance advantage due in part to training effects and fixed traits. There is no current evidence that testosterone suppression or gender-affirming hormone treatment eliminates this advantage.” Id., at 3.
C
Most relevant for present purposes: In the past six years, 27 States have enacted laws that maintain women’s and girls’ sports for biological females. These cases concern two of those state laws, from West Virginia and Idaho.
West Virginia has long authorized sex-separated school sports teams “where selection for such teams is based upon competitive skill.”
The law specifies that sex is determined by biology.
B. P. J. is a biological male who identifies as female. In third grade, B. P. J. socially transitioned and adopted a new name. Soon thereafter, B. P. J. took puberty blockers to prevent male puberty, and in sixth grade, B. P. J. also began to take hormones.
Shortly after passage of the West Virginia law, as B. P. J. was about to enter sixth grade, B. P. J.’s middle school principal informed B. P. J.’s mother that B. P. J. could not participate on the girls’ cross-country and track-and-field teams. B. P. J. is now in high school, where the same policies apply.
B. P. J. sued West Virginia officials and agencies for alleged violations of
During the ongoing litigation, B. P. J. competed on the teams. Recently, B. P. J. won the West Virginia Class AAA high school state championship in girls’ shot put and finished fourth in girls’ discus. B. P. J. won the Region 2 championship in both events. See Supp. Letter of W. Va. in No. 24–43 (May 29, 2026).
D
In 2020, the Idaho Legislature passed and Governor Little signed the Fairness in Women’s Sports Act. Like the West Virginia law, the Idaho law prohibits male students from participating on female teams.
The Idaho law states that sex is determined by biology.
The law further found that the benefit “that natural testosterone provides to male athletes is not diminished through the use of puberty blockers and cross-sex hormones.
Hecox is a biological male who identifies as female. Hecox underwent male puberty. In college, Hecox began to take hormones. Hecox attends Boise State University and has competed for the women’s club soccer team. Hecox also has tried out for the women’s Division I track and cross-country teams.
Shortly after Idaho enacted the Fairness in Women’s Sports Act, Hecox sued Idaho officials and agencies,
II
We first address the
A
Passed by Congress and signed by President Nixon in 1972,
As originally enacted,
In 1975, pursuant to that statutory directive, HEW promulgated comprehensive regulations to prevent sex discrimination in school sports. 40 Fed. Reg. 24128. Most critically, the regulations required that schools provide “equal athletic opportunity for members of both sexes” and authorized “separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”
Those regulations took effect on July 21, 1975, and they remain in place today. Because HEW’s interpretation of
B
The question is whether
In addition, the
Notably, B. P. J. does not seriously contest that the term “sex” in
But the texts of
B. P. J. counters with an argument based on the 1974 Javits Amendment. B. P. J. zeroes in on the Javits Amendment’s directive that HEW, in its regulations, adopt “reasonable provisions considering the nature of particular sports.” §844, 88 Stat. 612 (emphasis added). As B. P. J. sees things, if the regulations authorize a school to limit women’s and girls’ sports teams to biological females, then the regulations are not “reasonable” and therefore are unlawful.
We disagree. Separate sports teams for biological males and biological females are reasonable: Given the inherent physical differences between the sexes, allowing only biological females to play on women’s and girls’ teams can reduce the risk of physical injury and ensure fair competition. True, some might prefer a different rule allowing biological males who identify as female to participate on women’s and girls’ sports teams, at least in certain circumstances. But it was surely “reasonable” for HEW in 1975 to draw a biological line—a line where biological males play only on male sports teams and only biological females play on female sports teams. Even in recent years, 27 States, the NCAA, the USOPC, and the IOC have all drawn the same line.
In assessing the reasonableness of the regulations, we also must recognize the distinctiveness of competitive sports—and the safety and competitive fairness issues that can arise when females are forced to compete against males.
With respect to safety, allowing biological males to play on women’s and girls’ sports teams can put women and girls at significant risk of injuries. The safety risks are pаrticularly severe in contact sports.
And as to competitive fairness, allowing biological males to play on women’s and girls’ sports teams can put female athletes at a serious disadvantage. That is because sports are generally zero sum. Allowing a biological male athlete to compete on a girls’ team necessarily displaces or disadvantages a female athlete—replacing her on the roster, knocking her out of the starting lineup, reducing her playing time, depriving her of a medal, and the like. That hard reality of sports cannot be ignored or swept under the rug. On the contrary, that reality must and does inform interpretation of the term “reasonable” in the Javits Amendment.
Whether biological males may participate on women’s and girls’ sports teams may be a debated policy question. But the legal question for
C
B. P. J. advances two other
First, B. P. J. contends that the school’s policy violates
Second, B. P. J. cites
We disagree. Title VII concerns employment, whereas
In sum,
III
We next address the constitutional challenges to the West Virginia and Idaho laws under the
Ratified in 1868, the
Under this Court’s equal protection precedents, laws that classify by sex are subject to what is known as intermediate scrutiny: Sex-based classifications are permissible only when the classification is “substantially related” to achieving an “important” government objective. Id., at 510 (quotation marks omitted); see also United States v. Virginia, 518 U. S. 515, 532–533 (1996) (Ginsburg, J., for the Court); Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724–725 (1982) (O’Connor, J., for the Court).
The West Virginia and Idaho laws authorize separate female and male sports teams. And the laws limit women’s and girls’ sports teams to biological females. In doing so, the laws make a sex-based classification that triggers intermediate scrutiny.
So the equal protection questions become: What are the States’ interests in maintaining separate teams for males and females, and in limiting female teams to biological females? And is the States’ sex-based classification—that is, the limitation of women’s and girls’ sports teams to biological females—substantially related to those interests?
The States start with the undisputed proposition that biological males generally possess inherent physical advantages in sports—in height, weight, strength, speed, endurance, jumping ability, and the like. See United States v. Virginia, 518 U. S., at 533 (“Physical differences between men and women . . . are enduring”). Therefore, the States say, limiting women’s and girls’ sports to biological females
With respeсt to safety, the States say that allowing biological males to play on women‘s sports teams puts women and girls at significant risk of sometimes severe injuries. The safety risks are at their apex in contact sports, such as soccer, basketball, field hockey, lacrosse, and ice hockey, among others. (Anyone who thinks that those women‘s and girls’ sports, and other sports like them, are not contact sports has not witnessed a game recently.) And safety concerns also exist in ostensibly non-contact sports, such as volleyball, where spiked balls can cause serious injuries, and softball, where line drives can similarly cause significant harm.
As to competitive fairness, the States contend that allowing biological males to play women‘s and girls’ sports would put female athletes at a debilitating disadvantage. Again, sports are generally zero sum. Every biological male who makes the team takes a roster spot from a female athlete. Every biological male who earns playing time reduces the playing time of a female athlete. Every biological male who starts takes a starting position from a female athlete. Every biological male who wins a race takes the gold medal away from a female athlete. And so on. Even if only one or a few males were to play on a women‘s
What is more, forcing women and girls to play against biological males can deter some women and girls who would otherwise participate in sports from doing so—out of understandable concern about suffering serious injury or participating in what they view as an unfair competition. That second-order effect of allowing biological males to play women‘s and girls’ sports cannot be papered over, so the States say.
Based on all of the above, the States argue—and we agree—that the interests in safety and competitive fairness are important for purposes of equal protection analysis. And the States’ sex-based classification—limiting women‘s and girls’ sports to biological females—is substantially related to those interests. See Skrmetti, 605 U. S., at 510; Tuan Anh Nguyen v. INS, 533 U. S. 53, 70 (2001); Michael M. v. Superior Court, Sonoma Cty., 450 U. S. 464, 472–473 (1981) (plurality opinion). Therefore, schools may maintain women‘s and girls’ sports for biological females. In other words, schools may determine eligibility for women‘s and girls’ sports based on biological sex.
B
Once again, the plaintiffs agree with the States that, consistent with the
The plaintiffs characterize their equal protection argument in three overlapping ways—(i) as a lack of
First, the plaintiffs argue that the States have not established a substantial relationship between (i) the States’ interests in safety and competitive fairness and (ii) limiting women‘s and girls’ sports to biological females. They say that the States’ interests in safety and competitive fairness do not justify excluding all biological males—including those who identify as female and have taken puberty blockers or hormones—from participation in women‘s and girls’ sports.
But this Court‘s equal protection precedents allow general classifications like those made in the West Virginia and Idaho laws so long as there is at least a substantial relationship between the classification and the State‘s interests. See United States v. Virginia, 518 U. S., at 533. After all, “most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Skrmetti, 605 U. S., at 509 (quotation marks omitted). As the Court has long recognized, “[p]erfection in making the necessary classifications is neither possible nor necessary.” Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314 (1976) (per curiam). For that reason, none of this Court‘s “gender-based classification equal protection cases have required that the statute under consideration must be capable of achieving its ultimate objective in every instance.” Nguyen, 533 U. S., at 70.
Rather, under the intermediate scrutiny test that the Court applies in a variety of contexts, the “validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government‘s interests in an
Here, when analyzing the relationship between the classification based on biological sex and the asserted interests, the sports context is again crucial. Sports are different from, say, a typical emplоyment or educational opportunity where equal protection often may require that the government generally treat an individual without regard to the individual‘s sex. In the sports context, by contrast, everyone agrees that the States may maintain separate women‘s and men‘s teams—in other words, that the States may make distinctions based on sex—because of the inherent physical differences between women and men.
And importantly, everyone also agrees that States, in preserving separate sports teams for female athletes, need not account for the individual physical capabilities of (and differences among) every biological male who might want to play on a women‘s or girls’ team. To spell that out: Not every biological male athlete is bigger, stronger, faster, or otherwise more athletically able than every biological female athlete. Some percentage of biological males who identify as male possess physical and athletic capabilities that fall within (or below) the range of typical female physical and athletic capabilities. But the plaintiffs acknowledge that States may still exclude those biological males from women‘s and girls’ sports, given the general physical differences between males and females.4
And the
In short, States are not required to conduct an individual-by-individual comparison of the physical and athletic capabilities of all biological males in order to satisfy intermediate scrutiny. Intermediate scrutiny permits a sex-based classification that, as here, is “not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.” Michael M., 450 U. S., at 469 (plurality opinion).
Second, and relatedly, the plaintiffs advance what they describe as an as-applied equal protection argument. The plaintiffs say that the States’ sex-based classification is generally permissible—but not as applied to those biological males such as B. P. J. and Hecox who identify as female and have taken puberty blockers or hormones.
But that argument is basically the same as the plaintiffs’ first argument about the relationship between the laws’ classification and the States’ interests—just with different labeling. The plaintiffs’ as-applied argument posits that the States’ interests must justify the laws’ application to a
The plaintiffs’ as-applied argument is in essence a backdoor argument for strict scrutiny, which requires a much tighter relationship between the State‘s classification and the State‘s asserted interests. But strict scrutiny does not apply to sex-based classifications, as the plaintiffs acknowledge. And strict scrutiny would be particularly out of place in this sports case, where sex-based classifications are permitted and the only question is whether the States may limit women‘s and girls’ sports to biological females.
Especially in the sports context, moreover, an enormous practical and administrability problem would arise if courts
And if those kinds of ad hoc exemptions based on physical capacity were constitutionally required, would exemptions also be rеquired for biological males who still identify as male but contend that they, too, are no taller, no stronger, no faster than the typical females in their chosen sport? Would those males also be entitled to play on a women‘s or girls’ team? If not, why not?
We need not belabor the point. In the sports context, starting down the road of judicially managed individualized exemptions based on physical capabilities of individual athletes could fundamentally undermine women‘s and girls’ sports—especially if the number of biological males who seek to play women‘s and girls’ sports increases significantly over time. The questions would be endless (and bitter) and yield few, if any, principled answers. The
That argument, too, is unavailing. To begin, under this Court‘s decision in Skrmetti, the laws do not classify based on gender identity or transgender status. 605 U. S., at 517. The laws classify on the basis of biological sex. By contrast, if a school had a co-ed sports team but prohibited all transgender individuals from participating on the team, that would be a distinct transgender classification and, unlike today‘s cases, would presumably not be analyzed and justified as a classification based on biological sex.
That said, even if the laws made a transgender or gender-identity classification, this Court “has not previously held” that intermediate or other heightened scrutiny applies to a transgender or gender-identity classification. Ibid. Several Members of this Court, moreover, have concluded that classifications based on transgender status or gender identity should receive only deferential rational basis review and not intermediate or other heightened scrutiny. See id., at 550–553 (BARRETT, J., joined by THOMAS, J., concurring); id., at 566 (ALITO, J., concurring in part and concurring in judgment).
In these cases, we need not definitively resolve whether rational basis review or intermediate scrutiny applies to transgender classifications. In either event, the classification here readily satisfies rational basis review or intermediate scrutiny for the reasons already explained at some length above. The States’ interests in ensuring safety and competitive fairness amply justify the States in maintaining women‘s and girls’ sports for biological females. Under the
Finally, the underlying medical and scientific premise of the plaintiffs’ entire equal protection argument is that at least some biological males who identify as female and take puberty blockers or hormones do not retain physical advantages over biological females.
Even if true, that empirical claim would not alter the equal protection conclusion set forth above. Under intermediate scrutiny, there still would be a sufficient relationship between the States’ classification based on biological sex and the States’ asserted interests in safety and competitive fairness.
In any event, the plaintiffs’ 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. To take one prominent example, the IOC found that “athletes retain Male performance advantage due in part to training effects and fixed traits. There is no current evidence that testosterone suppression or gender-affirming hormone treatment eliminates this advantage.” IOC, Policy on the Protection of the Female (Women‘s) Category in Olympic Sport and Guiding Considerations for International Federations and Sports Governing Bodies (Mar. 26, 2026).
The plaintiffs counter with arguments and studies of their own. But in assessing state and federal laws passed under circumstances of “medical and scientific uncertainty,” this Court has often said that the Judiciary must be cautious about swooping in and invalidating laws. Skrmetti, 605 U. S., at 524 (quotation marks omitted). The legislatures, we have emphasized, maintain “wide discretion to pass legislation” in those circumstances. Ibid. (quotation marks omitted). For good reason. Especially on medical and scientific matters where there is serious debate
To be sure, judicial deference does not mean abdication. But the current public medical and scientific record does not definitively establish that the 27 States, the IOC, the USOPC, and the NCAA are wrong in acting on the basis that at least some biological males who have taken puberty blockers or hormones still retain physical advantages over females.
In those circumstances, to reiterate, the legislative “institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data,” particularly in cases involving a topic of “inherent complexity.” Turner Broadcasting, 520 U. S., at 195–196 (quotation marks omitted). Indeed, “it is precisely where such disagreement exists that legislatures have been afforded the widest latitude in drafting such statutes.” Kansas v. Hendricks, 521 U. S. 346, 360, n. 3 (1997). Stated simply, “courts should be cautious not to rewrite legislation” “in areas fraught with medical and scientific uncertainties.” Marshall v. United States, 414 U. S. 417, 427 (1974). So it is here.
In closing on the equal protection issue, we repeat what the Court said in Skrmetti:
“This case carries with it the weight of fierce scientific and policy debates . . . in an evolving field. The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements. Nor does it afford us license to decide them as we see best. Our role is not to judge the wisdom, fairness, or logic of the law before us, but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment. Having concluded that it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.” 605 U. S., at 525 (quotation marks and citation omitted).
IV
Two points in response to the dissent:
First, the dissent directs various rhetoric against the Court‘s opinion—employing phrases such as “contorted logic” and “misguided approach” and “diminished view of equal protection” and “unencumbered by fact or law.” Post, at 2, 23, 29 (SOTOMAYOR, J., concurring in judgment in part and dissenting in part).
With respect, that rhetoric is misdirected. The Court‘s holding today is straightforward. The
Second, we do not accept the dissent‘s assumed monopoly on understanding the effects on individuals involved in disputes over transgender athletes. We are acutely aware of the difficulties sometimes faced by boys who identify as girls (and by girls who identify as boys) in middle school, high school, and beyоnd. And we greatly admire the desire of all students, including transgender students such as B. P. J., who want to participate in sports. But in conducting the equal protection inquiry, we must also account for the effects on girls who are forced to compete against biological males in sports.
* * *
Some might ask: What is the harm in allowing an additional athlete to compete in women‘s or girls’ sports? That sentiment, though understandable, misunderstands the nature and reality of sports.
Sports are highly competitive and generally zero sum. At almost every turn, someone wins and someone loses. Every athlete who makes a team takes a roster spot from another athlete. Every player who earns playing time reduces the playing time of a teammate. Every player who makes the starting lineup sidelines another who remains on the bench. Every competitor who wins a race or competition deprives another athlete of that victory, or medal, or prize. Every team that wins because of an added player means that another team has lost because of that added player. Every player who makes all-conference beats out another player who does not. Every student who earns an athletic scholarship takes that opportunity away from another student. And so on.
Women and girls who play sports care deeply about all of those things. They obsess about them. They spend extraordinary time and effort to train in the heat and in the
The two States here—along with 25 other States, the IOC, the USOPC, and the NCAA—have concluded at this time that women and girls should be allowed to compete for those life-changing opportunities on an equal playing field, without fear of physical injury from biological males or being forced to compete against biological males. Consistent with
In so ruling, we emphasize one last point. Most of the biological female and transgender student-athletes who are involved in transgender sports disputes around the country are teenagers or in their early twenties. Those student-athletes want to play sports. Their desire to compete
In B. P. J.‘s case, we reverse the judgment of the U. S. Court of Appeals for the Fourth Circuit and remand the case for further proceedings consistent with this opinion. In Hecox‘s case, we reverse the judgment of the U. S. Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
The Court correctly holds that neither
First, transgender status is not a suspect class requiring heightened equal-protection scrutiny. United States v. Skrmetti, 605 U. S. 495, 547–557 (2025) (BARRETT, J., concurring). The class of people who claim transgender status could more accurately be described as people who are experiencing “gender dysphoria,” which is not a “discrete group.” Id., at 550–551 (internal quotation marks omitted); see also id., at 566–567 (ALITO, J., concurring and concurring in
Second, as the Court recognizes, this case concerns “biological men” and “boys who identify as girls.” Ante, at 10, 27. Men and boys with gender dysphoria are not women or girls, even if they believe that they are. Sex is an immutable “biological” chаracteristic, see ante, at 10; it is binary; and “man” and “woman,” “boy” and “girl,” are the terms that correspond to adults and children of each sex. See A. Byrne, Are Women Adult Human Females? 177 Philosophical Studies 3783, 3786–3787 (2020). To use language to obscure reality—to show “indifference regarding the truth“—is to lie to the public and cease to treat our fellow citizens “as equal[s].” J. Pieper, Abuse of Language—Abuse of Power 17, 21 (1992).
I join the Court‘s opinion and write to add two observations about
First, ”
Nothing in
Second, Bostock v. Clayton County, 590 U. S. 644 (2020), supports, not undermines, the Court‘s conclusion. There,
All of that is consistent with the course the Court takes today.
The difference between this case and Bostock is that we face here a question that wasn‘t present there. In Bostock, again, no one doubted that firing someone because of his biological sex qualified as “discrimination” under
Put simply, it is a mistake to assume that, just because firing someone in part because of his biological sex amounts to unlawful discrimination in violation of
I appreciate that questions surrounding the participation of transgender athletes in women‘s and girls’ sports are subjects of intense debate nationwide. The questions surrounding Bostock were too. But as there, our charge here
Respondent B. P. J. is a transgender girl who wants to live her life consistent with her gender identity. When B. P. J. was 11 years old, she sought the opportunity to do what she and so many other children love to do: play sports. In order to do so, B. P. J. needed to turn to litigation because West Virginia has banned all transgender girls from playing in girls’ sports from middle school through college. According to the State, this ban serves the State‘s important interests in ensuring safety and preventing unfair competitive advantages in girls’ sports. B. P. J., however, contends that neither of the State‘s asserted justifications apply to transgender girls like her, who have never
In the five years since the ban has been in place, B. P. J. is the only transgender girl publicly identified in the State who has sought to play sports with other girls. Today the Court holds that neither
Applying a form of heightened scrutiny divorced from this Court‘s cases, the majority holds that transgender girls like B. P. J. who wish to play girls’ sports are not protected by the
This litigation implicates deeply sensitive, contentious, and evolving issues. These circumstances demand exercising judicial restraint, not rushing to answer conclusively difficult questions without sufficient evidentiary development. In opting otherwise, the majority extends great sympathy to those it favors: the young cisgender girls and women who play sports. I share that sympathy. Playing sports can lead to benefits that are immeasurable, and
I
Before addressing the complex legal issues that this case presents, it is important to understand its history and the people involved, both of which the majority unduly brushes over.1
A
In 2021, West Virginia banned all transgender girls and women from participating in school sports designated for female students. Dubbed the “Save Women‘s Sports Act,”
This ban replaced a policy of case-by-case assessment that had been in place since 2016. Back then, sports were also sex-separated, as they had been for decades, but transgender students could participate on teams matching their gender identity if their schools “determined that ‘fair competition’ would not be impacted by the student[s‘]
The ban eliminated this individualized approach in favor of categorical exclusion. Now, every competitive, intramural, and club sport offered at the middle-school through college level must be “expressly designated as” either male, female, or coed, as determined by “biological sex.”
B
B. P. J. is a teenager who lives in West Virginia. Her mother describes her as “a bright and kind child who cares deeply about her family and friends and excels in school.” 10 App. 4406. B. P. J. is like many other teenagers: She is “very passionate about math and science“; her favorite videogames include Minecraft and Overwatch; and she enjoys jumping on the trampoline, running, playing with her dogs, and seeing her friends. 2 id., at 579.
B. P. J. is also transgender. Her sex was identified as male at birth, but she has known from the time that she
Then, when B. P. J. was around nine years old, she was diagnosed with gender dysphoria. This clinical diagnosis means that B. P. J. experiences significant and consistent distress from the fact that her sex identified at birth does not match her gender identity. Brief for American Psychological Association et al. as Amici Curiae 8–9 (APA Brief). If left untreated, it “can cause debilitating distress, depression, impairment of function,” self-harm, and suicidality. See id., at 10–12; 3 App. 1249. A year after her diagnosis, B. P. J. began receiving puberty-delaying treatment to prevent the onset of an endogenous male puberty. Two years after that, she began taking a form of estrogen to facilitate a typical female hormonal puberty.
When West Virginia enacted the ban, B. P. J. was nearing the end of fifth grade and preparing to enter middle school. B. P. J. was especially looking forward to joining the girls’ track team and running cross country, like many family members had before her. The middle school principal informed B. P. J.‘s mother, however, that B. P. J. could not participate on either team because of the ban. This was true even though everyone who eventually tried out for the girls’ cross-country team made it, 1 id., at 456–457; 2 id., at 730, meaning that there were no “cuts,” and so this was not a “zero sum” situation, contra, ante, at 16.
A month after the ban went into effect, B. P. J. (through her mother) brought this lawsuit, arguing that the ban violates the
The District Court granted a preliminary injunction barring the State from enforcing the ban against B. P. J., concluding that B. P. J. had shown that the ban was likely “unconstitutional as it applie[d] to her and that it violate[d]
B. P. J.‘s mother reports that B. P. J. “has had the time of her life participating on these teams.” 10 id., at 4406. She has watched B. P. J. make close friends and gain a sense of belonging. Her mother recalls taking B. P. J. to practice after hours and on weekends, and often witnessing B. P. J. practicing her form in the backyard “by herself, for hours.” Id., at 4407. Above all, her mother explains that B. P. J. “is the happiest I have ever seen her when she is accepted for who she is and able to participate in school sports.” Id., at 4408. In B. P. J.‘s words, “[s]ports are an important part of [her] experience at school,” she is “so happy to . . . have the chance to participate,” she has “made so many new friends,” and she “just want[s] to have the opportunity to [play] school sports like any other girl.” 2 id., at 581.
Meanwhile, B. P. J.‘s case proceeded to discovery. Because of the medical treatment that B. P. J. has received, she has never experienced a traditional male puberty and so has never experienced elevated levels of circulating testosterone. B. P. J. contends that, as a result, she does not have an inherent athletic advantage due to her sex identified at birth and, accordingly, that her participation in girls’ sports does not threaten competitive fairness or safety,
The District Court granted the State‘s motion for summary judgment on B. P. J.‘s equal protection and
B. P. J. moved in the Fourth Circuit for an injunction pending appeal, which the Circuit granted. This Court denied the State‘s request to vacate that order. See 598 U. S. ___ (2023). The next year, the Fourth Circuit reversed the District Court on B. P. J.‘s
II
West Virginia‘s decision to separate sports teams based on an individual‘s sex identified at birth is a clear sex classification subject to heightened scrutiny. West Virginia justifies the classification by citing two interests: ensuring (1) competitive athletic opportunities and (2) safety in participation for women and girls in sports. As the majority stresses and no one disputes, when it comes to sex identified at birth, males generally have an inherent athletic advantage over females in playing sports. B. P. J., however, contends that this generalization does not hold true for a discrete, easily identifiable group: transgender girls who have never experienced an endogenous male puberty, who receive gender-affirming treatment, and who are, she says, thus similarly situated to cisgender girls. For that group, she argues, neither of West Virginia‘s interests is furthered by excluding them from girls’ and women‘s sports.
The Court should have affirmed the Fourth Circuit‘s decision to remand for further factfinding. In not taking this modest step, the majority badly errs in two ways. First, the
None of this is to suggest what the eventual outcome of this litigation would have been, or even should have been, had the majority allowed the courts below to make the missing factual determinations and had those courts correctly applied heightened scrutiny with the benefit of those facts. West Virginia may well have satisfied its burden and seen its ban upheld. The point, rather, is that this Court‘s equal protection precedents require a very different approach to B. P. J.‘s claim than the one the majority follows today.
A
1
The
As all agree, the ban at issue classifies based on sex. West Virginia seeks to separate sports teams based solely on an individual‘s sex identified at birth. As a result, cisgender girls, whose sex identified at birth is female, can play on girls’ teams whereas transgender girls, whose sex identified at birth is male, cannot. The difference, undoubtedly, is sex.3
The key question here is whether that sex separation is constitutionally justified. Sex classifications like this one cannot be deployed unless they survive “heightened scrutiny.” J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136 (1994) (explaining that this level of scrutiny is “warrant[ed]” due to “‘our [Nation‘s] long and unfortunate history of sex discrimination‘“). To survive this inquiry, the State must provide an “‘exceedingly persuasive justification‘” for letting the sex classification stand. Virginia, 518 U. S., at 546. This means that the State must show “‘at
2
Before this Court, West Virginia argues that its sex classification substantially furthers its important interests in ensuring competitive fairness and safety in girls’ and women‘s sports. As the State conceded below, however, it has no interest “in protecting one girl‘s ranking in any competition or ‘in ensuring that cisgender girls do not lose ever to transgender girls.‘” 98 F. 4th, at 560. Rather, the focus is on when the participation of transgender girls is actually unfair or unsafe for others. Ibid. Understood in that way, B. P. J. does not dispute the importance of either interest here.4
As the majority further identifies, no one disputes that sorting based on sex identified at birth, as a means to achieve West Virginia‘s asserted interests, will further those interests in most situations. See ante, at 17. That is because, as the majority explains and B. P. J. does not contest, there are inherent physical differences between males and femаles, as defined by sex identified at birth, making them differently situated generally when it comes to many sports. Ibid.; see Virginia, 518 U. S., at 533.
Even so, B. P. J. contends that the means deployed by West Virginia here, a total ban on participation, lack the right fit. She argues that the chosen classification bars a discrete subclass from participating in girls’ and women‘s sports even though the State‘s interests will not be furthered by their exclusion. According to B. P. J., transgender girls and women who both receive gender-affirming treatment and have never experienced endogenous male puberty neither possess any inherent athletic advantage nor pose any safety risks because of their sex identified at birth. As B. P. J. tells it, this distinct subclass is thus similarly situated to cisgender girls and women and yet is still being excluded. It is this overbreadth, she argues, that leads to the equal protection violation.
Under this Court‘s precedents, this asserted factual difference, which has not been conclusively litigated below, matters to the equal protection analysis.
a
This Court has held that a sex classification violates equal protection when there is an incongruity between the
The plaintiff Caban, though, did not fit the justification underlying the State‘s classification: He was an unwed father who had “a relationship with his children fully comparable to that of the mother,” so the application of the classification to him did not further the State‘s interests. Id., at 389. Confronted with this difference, the Court held that “[i]n those cases where the father never has come forward to participate in the rearing of his child, nothing in the
A few years later, the Court addressed an equal protection challenge against the same New York law, this time by Lehr, an unwed father who had “never established any custodial, personal, or financial relationship” with his daughter. Lehr v. Robertson, 463 U. S. 248, 267 (1983). This time the claim failed: Because Lehr was “not like the [father]
Taken together, the Court in Caban and Lehr dealt with the sex classification‘s overbreadth by allowing the State to use the classification when doing so actually furthered its interests (Lehr), but not when it did not (Caban). Similarly here, B. P. J. contends that even if the use of the sex classification substantially furthers the State‘s interests when it prevents cisgender boys from playing on girls’ teams, it does not substantially further the State‘s interests when it prevents transgender girls who have never experienced an endogenous puberty and who receive gender-affirming treatment from doing the same. As in Caban and Lehr, it matters if she is right.
The Court has closely scrutinized differences like this in others cases too. In United States v. Virginia, 518 U. S. 515, for example, the Court addressed the lawfulness of the Virginia Military Institute‘s (VMI‘s) male-only admissions policy. The Court held that Virginia could not “constitutionally deny to women who have the will and capacit[y] the . . . opportunities that VMI uniquely affords,” even if “most women” did not have that “will and capacity.” Id., at 542.
Virginia had justified the exclusion of all women by citing its “goal of producing citizen-soldiers” and its “implementing methodology” (a harsh and rigorous “‘adversative method‘” of instruction). Id., at 520. Prohibiting women from the school on these bases, however, rested on a “[g]eneralizatio[n] about ‘the way women are‘” and was at best an “estimat[e] of what is appropriate for most women.” Id., at 550. Under this Court‘s cases, the Court held, such classifications could “no longer justify denying opportunity to women whose talent and capacity place them outside the average description.” Ibid. That was because neither of the Commonwealth‘s interests were “‘inherently unsuitable to women,‘” and at least a subclass of women could “‘do well
Here again, B. P. J. is making a similar claim. Even though, she says, West Virginia‘s classification may substantially further the State‘s interests in most applications, as was the case for most of the women who did not want to and could not attend VMI, the State‘s interests are not substantially furthered as applied to her subclass, аs was the case for “some women” who did want to and could attend VMI. The Court‘s holding in Virginia thus shows that unresolved factual differences matter, even if the classes of people to whom they might be relevant are themselves small.
b
Whether the fit between the means and the State‘s interest is “‘exceedingly persuasive,‘” id., at 533, also depends on the nature of the burdens imposed. The Court‘s decision in Tuan Anh Nguyen v. INS, 533 U. S. 53 (2001), provides a helpful illustration. That case concerned a statute that classified based on sex: It allowed citizen mothers, but not citizen fathers, married to noncitizens to transmit U. S. citizenship at birth to their children born abroad. Id., at 56–57. This Court upheld the differential treatment, concluding that it furthered the interest of ensuring a substantial “parent-child relationship” with a U. S. citizen before bestowing citizenship, given that mothers, by virtue of giving birth, had the potential for such a relationship and indeed
Some citizen fathers, of course, had knowledge of parenthood from the moment of their child‘s birth. In this way, the classification did not fit them. Congress had accounted for those situations, however, by allowing fathers to take one of three “simple” procedural steps to secure citizenship for their children. Id., at 71; see id., at 63 (listing those steps as “legitimation, paternity oath, and court order of paternity“). As the Court explained, it was “mindful” of “the obligation” that the classification “impose[d]” on “a citizen father,” but it recognized that the burden was “minimal” and that “Congress ha[d] not erected inordinate and unnecessary hurdles” for a father to gain the same benefit for his children as a mother to whom he was similarly situated. Id., at 70–71. It was in that context that the Court upheld the sex classification, even though Congress‘s “ultimate objective” was not achieved in every application of it. Id., at 70.
In stark contrast, Caban, Virginia, and other cases like them show that classifications can violate the
All these cases help explain what it means for the “fit between the means and the important end [to be] ‘exceedingly persuasive,‘” Nguyen, 533 U. S., at 70, and they demonstrate that the existence of readily identifiable, discrete subclasses that do not fit a classification‘s generalization can factor into that analysis. If a State includes a discrete subclass in an overbroad classification when exempting them would not unnecessarily jeopardize the government interest the State wishes to further, that can show that the State‘s choice to use the classification is not actually in service of those interests, but rests on discriminatory generalizations instead.6
Here, B. P. J. argues that the State‘s sex classification fails heightened scrutiny not only because it does not fit her subclass, but also because it operates as a categorical exclusion, much like the classifications in Caban, Virginia, and Trimble. Here, unlike in Nguyen, there are no procedures for her to follow to prove that she is similarly situated to cisgender girls and thus able to participate on the girls’ team. Because this Court‘s equal protection analysis of sex classifications has generally considered whether the classification fits discrete subclasses and the extent to which subclasses are burdened, it matters if B. P. J. is right about the purported problems she identifies. At this stage, the Court therefore needs additional facts to assess whether B. P. J. is in fact correct, and whether, as a result, the State has “unnecessarily” refused her an exception.7
The majority offers several reasons for concluding that the alleged inaccuracy that B. P. J. identifies does not matter at all and that further factual development is therefore unnecessary. To the majority, the fit here is simply good enough. In so concluding, the Court elevates the reasoning of earlier dissents and lowers the State‘s burden for justifying the use of sex classifications in potentially all cases. Cf. Cisco Systems, Inc. v. Doe, 609 U. S. ___, ___ (2026) (SOTOMAYOR, J., dissenting) (slip op., at 23) (“‘When proponents of [previously rejected] arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent‘“).
a
The majority‘s analysis starts, and largely ends, with a single premise. As the majority tells it, because the important governmental interests behind laws subject to heightened scrutiny need to be furthered only in most (and not all) applications of a given clаssification, the fact that B. P. J. has identified some applications in which the State‘s interests may not be furthered does not and cannot give rise to an equal protection violation. See ante, at 18–22.8 The majority acts as if the Court is having this debate
To begin, the Court in neither Caban nor Virginia imposed this limitation. In fact, similar arguments were raised by the dissents in each.
Today, for example, the majority states that a plaintiff must identify “an especially large subclass” in which the State‘s asserted interest is not furthered before a court can find a classification‘s fit lacking or grant relief of any kind. Ante, at 21. You would not know it from reading the majority‘s opinion, but Justice Stevens made the same argument dissenting in Caban. He observed that the Court had wrongly found an equal protection violation because the State‘s “justification [was] not as strong for some indeterminately small part of the disadvantaged class as it [was] for the class as a whole” and so was invalid “as it applie[d] to that subclass.” 441 U. S., at 409. That was wrong, Justice Stevens said, because Caban had not “demonstrate[d] that its unjust applications are sufficiently numerous and serious to render it invalid.” Id., at 410. To Justice Stevens, given that Caban had shown that the classification‘s unfairness “extend[ed] only to himself and by implication to [an] unknown number of fathers just like him,” Caban had not
at 314. The majority also invokes Skrmetti, 605 U. S. 495, for a similar purpose, but that case also applied rational-basis review. Id., at 522. From here, the majority abandons the Court‘s equal protection precedents entirely, instead citing First Amendment cases applying distinct forms of intermediate scrutiny to regulations of commercial speech and time, place, and manner speech restrictions. See United States v. Edge Broadcasting Co., 509 U. S. 418, 429–430 (1993) (requiring only a “reasonable” fit); see also Ward v. Rock Against Racism, 491 U. S. 781, 801 (1989). In any event, even under these more relaxed standards, a speech restriction cannot “burden substantially more speech than necessary to further the government‘s” interests. Edge, 509 U. S., at 430. As analogized to this context, the State seemingly would fail that standard if it unnecessarily declines an exception for a readily identifiable subclass, when doing so does nothing to further its interests.
The solo dissent in Virginia raised similar objections to the Court‘s application of heightened scrutiny. In Justice Scalia‘s view, the majority in Virginia necessarily concluded that “VMI‘s single-sex composition [was] unconstitutional because there exist[ed] several women (or, one would have to conclude under the Court‘s reasoning, a single woman) willing and able tо undertake VMI‘s program.” 518 U. S., at 573. The dissent added, as the majority repeats here, that “[t]here is simply no support in our cases for the notion that a sex-based classification is invalid unless it relates to characteristics that hold true in every instance.” Id., at 574; see ante, at 18–19 (pressing this exact argument). Once again, where these arguments failed before, today they succeed.
Nor is the majority‘s analysis today persuasive on its own terms. Although it is true that sex classifications can be upheld even when they are not accurate in all applications, as was the case in Nguyen, that bare statement does not speak of what to do when confronted with differences within a class of people who are subject to a sex-based classification. Contra, ante, at 21, n. 5. It does not answer whether the State has “unnecessarily” denied exceptions for readily identifiable “categories” in which the classification did not fit. Trimble, 430 U. S., at 771. It does not answer whether any exceptions exist and if so, what the burdens associated with them are like. All told, it is inconsistent with intermediate scrutiny to dismiss out of hand the existence of classification errors that may show the State has in fact rested on exactly the kind of overbroad generalizations based on sex the
It is especially problematic to change course here. Recall that for nearly five years before the State enacted this ban, it had allowed transgender girls to рarticipate in girls’ sports in certain circumstances. See supra, at 3–4. Before that, sex-separated sports teams had existed for decades. The ban‘s entire purpose, and its entire effect, therefore was to eliminate the possibility of allowing any exception based on the legislature‘s fears, thus far not conclusively litigated, that transgender student-athletes categorically posed dangers to competitive fairness and safety in all girls’ and women‘s sports. To the legislature, this move was
The majority‘s position is thus fundamentally inconsistent. It credits the West Virginia Legislature‘s concern that a class consisting of transgender girls like B. P. J. is large enough to pose an existential threat to girls’ sports, but at the same time holds that this class is too small to be protected by the
Next, the majority contends that B. P. J.‘s claim collapses intermediate scrutiny and strict scrutiny. Ante, at 21. It does not.
First, and most obviously, strict scrutiny calls for a “‘compelling government interes[t],‘” Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 207 (2023), not an “‘important‘” one, Virginia, 518 U. S., at 533. Many laws subject to strict scrutiny fail on this ground alone. See, e.g., Louisiana v. Callais, 608 U. S. ___, ___ (2026) (slip op., at 35); Loving v. Virginia, 388 U. S. 1, 11 (1967); Vitolo v. Guzman, 999 F. 3d 353, 360 (CA6 2021); Rothe Development Corp. v. Department of Defense, 545 F. 3d 1023, 1049 (CA Fed. 2008); see also Students for Fair Admissions, 600 U. S., at 207 (recounting the short list of interests that have satisfied this showing).
Second, under strict scrutiny, States can use a classification such as race only if it proves that the “use of race is ‘narrowly tailored‘—meaning ‘necessary‘—to achieving that interest.” Id., at 207. The Court has interpreted that mandate to mean that if a State can achieve the same interest through other means, even if using race would allow it to achieve that interest in some (or even most) circumstances more effectively or with less expense, the State still cannot use race at all. See, e.g., Fisher v. University of Tex. at Austin, 570 U. S. 297, 312 (2013).
Intermediate scrutiny, by contrast, allows States to use a classification when it furthers its interests in most applications, even if not all applications. The Statе can then put the onus on the individual to come forward, as B. P. J. must here, and prove that she does not fit the generalization behind the classification and is in fact similarly situated to the class of people she is being treated differently from, so long as the burdens are not themselves too demanding, see Morales-Santana, 582 U. S., at 66. The State, moreover, can also prove that it did not deny a given exception
B
Stepping back from contending that the factual dispute does not matter at all, the majority suggests that even if it were relevant, B. P. J. could not prevail. That is because, the majority says, there is an ongoing scientific debate over whether transgender girls who have not experienced an endogenous male puberty and who receive gender-affirming treatment possess an athletic advantage inherent to cisgender men. In the majority‘s view, the Court should be “cautious about swooping in and invalidating laws” that implicate such uncertainty and should instead defer to the legislature‘s “considered policy judgments.” Ante, at 24–25. Of course, even when applying heightened scrutiny, courts should give deference to what legislatures and experts have to say when dealing with scientific issues. Even so, the deference afforded is not conclusive. Nor does the mere existence of scientific debate end the matter.
In proceeding differently, the majority again cites the wrong standard, primarily relying on cases that applied rational-basis review, not heightened scrutiny. See, e.g., ante, at 24–26 (quoting United States v. Skrmetti, 605 U. S. 495, 525 (2025); Marshall v. United States, 414 U. S. 417, 427 (1974)). Indeed, the majority recites arguments on this score that are identical to the ones it embraced in Skrmetti, when it applied rational-basis review to uphold the law at issue there. Compare ante, at 24–26, with 605 U. S., at 524 (outlining the level of caution and deference courts must
The two tests are not the same. Courts will uphold legislation subject to rational-basis review so long as there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993). Heightened scrutiny, by contrast, requires courts to “closely scrutinize legislative choices” to ensure that the use of the classification satisfies the required means-ends fit. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 441 (1985); see also Skrmetti, 605 U. S., at 552–553 (BARRETT, J., concurring) (drawing this distinction); id., at 528–529 (THOMAS, J., concurring) (same). In Virginia, for instance, the Commonwealth had cited a “substantial body of contemporary scholarship and research,” 518 U. S., at 576 (Scalia, J., dissenting), to support its assertions that it need not allow women to attend because women thrive in a “‘cooperative atmosphеre,‘” and not in the “atmosphere of adversativeness” that men “‘tend to need,‘” id., at 541 (majority opinion). The Court did not thoughtlessly defer to Virginia‘s judgments about that research. Rather, it held that when presented with “generalizations or ‘tendencies’ of the kind pressed by Virginia,” “reviewing courts” must “take a ‘hard look‘” to ensure that they do not perpetuate “overbroad ‘generalizations‘” and “‘fixed notions concerning the roles and abilities of males and females.‘” Id., at 541–546.
To be clear, B. P. J. ultimately may not be able to show that the science is sufficiently on her side; this dissent takes no position one way or another on B. P. J.‘s odds of success. In other words, West Virginia might be right that transgender girls retain some inherent athletic advantage over cisgender girls due to their sex identified at birth even after receiving the hormonal therapy B. P. J. identifies. All agree, moreover, that States do have some room to legislate around issues when there exists significant, and genuine, scientific debate. At this point, however, neither the District Court nor the Fourth Circuit has passed upon any of the available evidence or made the necessary factual findings about the state of the scientific debate. Given the lack of factual development, it is the majority that should heed its own word and be “cautious about swooping in,” ante, at 24, rather than resolving this kind of factual dispute in the first instance and in this slapdash manner. A restrained approach, based on all relevant facts, is particularly necessary when the Court is faced with a consequential decision of constitutional dimension.
In sum, an outstanding factual dispute should have prevented the Court‘s resolution of B. P. J.‘s claim. Far from being wholly irrelevant, that factual dispute is potentially outcome determinative. In concluding otherwise, the majority adopts the position that the
The majority applies its diminished view of equal protection to the sports context today, relying on the parties’ concessions that the State‘s asserted interests will be furthered in most applications, given the particularly close relationship between sex, sports, and those interests. One can only hope that the same misguided approach does not and will not extend to other contexts tomorrow, when any of these considerations are missing.13
The majority nonetheless worries that dismissing Hecox as moot could risk “‘insulat[ing] a decision from review‘” and rewarding “post-certiorari” gamesmanship. Ante, at 14, n. 3. Yet no evasion of review was ever possible here because identical issues are pending before (and have now been resolved by) the Court. Indeed, despite reaching out to resolve both cases on the merits, see ante, at 14, n. 3, 29, nothing in the majority‘s analysis appears to depend on anything specific to Idaho‘s law or the record in Hecox. The majority thus accomplishes nothing by stretching the bounds of Article III to decide this moot case, other than needlessly and gratuitously prolonging the ordeal of “harassment” and “negative public scrutiny” that Hecox experienced litigating this case and has sought to escape by dropping it. App. to Suggestion of Mootness in No. 24–38, p. 2a.
III
In addition to contending that the State‘s ban violates the
To start, as the majority observes, see ante, at 10, B. P. J. does not dispute that, for the purposes of this case, “sex” in
In support of her claim, B. P. J. invokes this Court‘s decision in Bostock v. Clayton County, 590 U. S. 644 (2020). See ante, at 13. In Bostock, the Court construed Title VII and reached the simple but consequential conclusion that when a person‘s transgender status is a but-for cause of an employment decision, sex ineluctably is also a but-for cause of that decision. 590 U. S., at 662. It is “impossible,” the Court explained, to draw a transgender-based distinction without also drawing a sex-based distinction. Id., at 660. Further, because Title VII prohibits sex-based discrimination in the workplace, Bostock held, it also prohibits transgender discrimination in that context. Ibid.
The majority is correct that Bostock does not require finding a
The facts here illustrate the difference. B. P. J. was told that she cannot play on girls’ teams because she was identified as male at birth. If her sex identified at birth had been female, however, B. P. J. would have been allowed to play on girls’ teams. Bostock thus teaches that sex is a but-for cause of her exclusion. See 590 U. S., at 659–660 (concluding that a choice was made “because of sex” whеn “changing the employee‘s sex would have yielded a different choice by the employer“). From here, though, Bostock has nothing to say about whether this discrimination based on sex is unlawful. See ante, at 4 (GORSUCH, J., concurring) (articulating the same). On this point, B. P. J.‘s claim fails because
Yet there are plenty of contexts outside of athletics in which
IV
The majority‘s opinion ends by reciting the many wonderful ways in which playing sports can be valuable to young people. It can help build resilience, tenacity, leadership, and discipline. It can lead to life-long friendships, community, and a sense of belonging. It can bring joy and the thrill of victory, along with all the lessons one learns from experiencing defeat. The benefits are immense.
Because of the Court‘s decision today, 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 ban is absolute, so B. P. J. cannot practice on girls’ teams, even if she would not take anyone‘s spot in an eventual competition, even if everyone who tries out for the team makes it, and even if having the chance to participate could aid immensely in treating B. P. J.‘s gender dysphoria. Sports, of course, are often zero sum, but the law need not and should not be. Because the Court today errs by reducing the burden, at least in the sports context, that the Constitution places on state actors when classifying based on sex, I respectfully dissent.
As the majority notes, B. P. J. does not argue that “sex” in
All this is true even though the holding of Bostock v. Clayton County, 590 U. S. 644 (2020), plainly applies to
But there is reason to doubt the soundness of the concession that
The prohibition against stereotyping is difficult to explain fully by reference to sex assigned at birth. A sex stereotype often will but need not have anything to do with an individual‘s sex assigned at birth. A transgender woman penalized for being perceived as aggressive has experienced discrimination “on the basis of sex” just as much as a cisgender woman has, no matter that the transgender woman‘s behavior matches expectations of her sex assigned at birth. Either way, the institution has imposed its gender-based expectations upon her. And either way, the institution may have violated
In short, the majority is wrong to suggest that the term “sex” in
Notes
“(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. . . . For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.
“(c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes.”
B. P. J.‘s expert is a Fellow of the American College of Physicians and an endocrinologist at Mount Sinai. He submitted a report explaining that, “based on current research,” circulating testosterone, not “[a] person‘s genetic makeup and internal and external reproductive anatomy,” is “the primary known biological cause of average differences in аthletic performance” between cisgender men and cisgender women.” 4 App. 1550. He further explained that individuals who received the kind of treatment B. P. J. has received are “somewhat similarly situated to women with XY chromosomes who have complete androgen insensitivity syndrome,” ibid., meaning they have “inactive testosterone receptors” and thus do not “respond to testosterone,” id., at 1541. “[I]t has long been recognized,” the expert continued, “that women with [that condition] have no athletic advantage.” Id., at 1550.The State‘s expert is a Professor of Exercise Science at the University of Nebraska at Kearney and received a Ph.D. in Health and Human Performance. He submitted a report explaining that inherent “advantages” in athletic performance due to an individual‘s sex identified at birth have been “shown in children before puberty” and that they are “magnified during puberty . . . in large part by the higher testosterone concentrations in men, and adolescent boys, after the onset of male puberty.” 6 id., at 2124. He further explained that the administration of hormone therapy “after the onset of male puberty does not eliminate the performance advantage that men and adolescent boys have over women or adolescent girls.” Id., at 2123.
Hecox has been a student at Boise State University since 2019 and is still enrolled there. At Boise State, Hecox has competed on the women’s club soccer team and has sought to try out for the Division I women’s track and cross-country teams. In 2022, Hecox stated in a declaration to the Court of Appeals: “I intend to play for the BSU’s Women’s Club Soccer Team this semester, next semester, and through the remainder of my time at BSU.” Decl. of L. Hecox in No. 20–35813 etc., ¶21 (CA9, Sept. 21, 2022) (emphasis added).
Only in September 2025, after this Court granted certiorari, did Hecox articulate a different view about playing competitive sports at Boise State. But that shift may not be permanent, particularly given Hecox’s prior change in position. Cf. Erie v. Pap’s A. M., 529 U. S. 277, 287–288 (2000). Moreover, post-certiorari actions that would “insulate a decision from review by this Court must be viewed with a critical eye.” Knox v. Service Employees, 567 U. S. 298, 307 (2012).
Hecox remains an enrolled student at Boise State. Hecox’s case is not moot.
The ban may also be subject to heightened scrutiny under Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 (1979). To start, transgender status, as I argued in United States v. Skrmetti, 605 U. S. 495 (2025), is a quasi-suspect classification. Id., at 600–603 (dissenting opinion). “Transgender people have long been subject to discrimination in healthcare, employment, and housing, and to rampant harassment and physical violence.” Id., at 601; see also id., at 601–602 (collecting examples). They also “have a defining characteristic (incongruence between sex and gender identity) that plainly ‘bears no relation to [the individual‘s] ability to perform or contribute to society.‘” Id., at 602. This quasi-suspect class is no less a “‘discrete subgroup‘” than others this Court has recognized. Contra, ante, at 1 (THOMAS, J., concurring); see Skrmetti, 605 U. S., at 602 (dissenting opinion). From here, the ban may have been enacted “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon” transgender girls and women. Feeney, 442 U. S., at 279. Because B. P. J.‘s equal protection claim survives summary judgment based on the sex classification alone, however, there is no need to reach these issues.