Supreme Court Holds That States May Enact Laws Limiting Participation In Female Sports To Biological Females

In a landmark ruling, the Supreme Court held in West Virgina v. B.P.J. that transgender female athletes do not have the right under Title IX or the Equal Protection Clause of the U.S. Constitution to participate on female sports teams. 

The majority opinion, after analyzing the history and purpose of Title IX held: “In sum, Title IX allows schools to provide separate women’s and men’s sports teams defined by biological sex. Consistent with Title IX, West Virginia has permissibly maintained women’s and girls’ sports for biological females.” The Court likewise held that the Equal Protection Clause did not prohibit limiting female sports teams to biological females.

What does this mean in New York?

Interpretations of the New York State Human Rights law and guidance from the State Education Department require school districts to allow transgender athletes to participate in sports in accordance with the gender with which they identify. The Supreme Court’s decision addressed only whether a law limiting participation based on biological sex is lawful under Title IX and the Constitution. The Court was not presented with, nor did it address, the issue of whether it would violate the Title IX rights of a female student to be forced to compete against a biological male. 

Because the Court did not address this issue, the law in New York is left in a grey area. Language from the majority opinion in West Virginia would appear to suggest that should the Court one day be squarely presented with the issue, it will in fact hold that Title IX prohibits a biological male, though identifying as a female, from competing against female athletes:

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 particularly 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.

If such a ruling comes down, under the Supremacy Clause of the U.S. Constitution, state law would no longer matter.

This begs the question as to what school districts should do in the meantime. It is likely the State will quickly reaffirm in public statements that state law and SED guidance remains in full force and effect. If, however, a school district is sued under Title IX, the fact that it was complying with state law will not be a defense. On the other side, if a school district prohibits a transgender student from participating on a female team, and that student files a complaint with the State Division of Human rights, it will not be a defense that the district is reading the tea leaves as to what the Supreme Court may ultimately decide.

There is no doubt that lawsuits will be making way through the courts on this issue. School districts facing this Morton's fork’s dilemma in terms of the coming fall sports season may wish to commence a declaratory judgment action sooner than later to get a ruling from a court as to its legal responsibilities. This should be discussed with legal counsel.

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