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SCOTUS to Review Whether State Gender-Based Sports Designations Violate Title IX and Equal Protection Clause of the 14th Amendment

11/6/25

By: Christopher M. Lewis

Does Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment prevent states from designating separate girls’ and boys’ sports teams based on biological sex determined at birth? Those are the issues presented before the Supreme Court of the United States in West Virginia v. B.P.J. following the State of West Virginia’s petition for a writ of certiorari to review the ruling of the United States Court of Appeals for the Fourth Circuit in B.P.J., By Her Next Friend and Mother, Heather Jackson v. West Virginia State Board of Education et al. 98 F.4^th 542 (4th Cir. 2024).

B.P.J. is an eighth-grade transgender female student within the Harrison County School District in West Virginia. B.P.J.’s sex was assigned male at birth. However, B.P.J. has publicly identified as a girl since third grade. In 2021, when B.P.J. was eleven, she expressed interest in trying out for the girls’ cross-country and track teams at her middle school. B.P.J.’s mother was informed by B.P.J.’s school that B.P.J. would be permitted to try out for the girls’ teams, dependent upon the outcome of the House Bill 3293, the Save Women’s Sports Act (hereinafter the “Act”), which was then pending in the West Virginia legislature. When the Act became law in April of 2021, the school informed B.P.J.’s mother that B.P.J. would not be permitted to try out for the school’s girls’ cross-country and track teams. Approximately one month after the Act took effect, B.P.J., through her mother, filed the subject lawsuit against the West Virginia State Board of Education, the Harrison County Board of Education, and the West Virginia Secondary Schools Activities Commission, alleging that the Act violates Title IX and the Equal Protection Clause of the Fourteenth Amendment.

The Act provides, in pertinent part, that “athletic teams or sports designated for females, women or girls shall not be open to students of the male sex,” while defining “male” as “an individual whose biological sex determined at birth is male.” Title IX provides that “no person… 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.” The Equal Protection Clause of the Fourteenth Amendment states that no state may deny any person within its jurisdiction “equal protection of the laws.”

At the district court level, B.P.J. filed a motion for summary judgment arguing that the Act violated Title IX and the Equal Protection Clause of the Fourteenth Amendment. The United States District Court for the Southern District of West Virginia denied B.P.J.’s motion for summary judgment, ultimately holding that the Act did not violate Title IX or the Equal Protection Clause of the Fourteenth Amendment pursuant to the animus doctrine. On appeal, the United States Court of Appeals for the Fourth Circuit held that the Act violated Title IX and that summary judgment in favor of the state on B.P.J.’s equal protection claim was not warranted.

The Supreme Court of the United States granted certiorari on July 3, 2025. The matter will likely be set for oral argument in the coming months. Accordingly, we can anticipate the Supreme Court to provide guidance as to whether Title IX and the Equal Protection Clause of the Fourteenth Amendment prevent states from designating separate girls’ and boys’ sports teams based on biological sex determined at birth for all circuits to follow.

For more information, please contact Christopher M. Lewis at chris.lewis@fmglaw.com or your local FMG attorney.   

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