By John F. Banzhaf III
Today’s unanimous decision by the U.S. Supreme Court in West Virginia v. B.P.J. upholding laws restricting participation on women’s athletic teams to biological females does more than resolve an important constitutional question. In my view, it also significantly strengthens the pending Title IX complaints against several women’s colleges that admit biological males who identify as women.
I have spent decades litigating sex discrimination issues, including more than 100 successful cases involving discrimination against women. Based on that experience, I believe the Court’s reasoning reinforces arguments I have made in complaints currently pending before the U.S. Department of Education’s Office for Civil Rights (OCR).
The institutions involved include Barnard College, Mount Holyoke College, Simmons University, Smith College, and Wellesley College. Each currently faces one or more Title IX complaints alleging that by admitting biological males while continuing to hold themselves out as women’s colleges, they are violating Title IX’s single-sex exception. Some of those complaints also challenge the participation of transgender women in women’s athletics at those institutions.
OCR has already articulated a position that I believe is highly significant. The agency has stated that Title IX’s single-sex exception applies on the basis of biological sex rather than gender identity and that an institution admitting biological males while claiming to remain an all-women’s college risks losing its status as a single-sex institution under Title IX.
Today’s Supreme Court decision strengthens that analysis.
The Court recognized that biological differences between males and females can create legitimate concerns regarding both competitive fairness and athlete safety. The opinion notes that allowing biological males to compete on women’s teams may increase the risk of injury and may undermine fair competition. Importantly, the Court emphasized that these concerns extend beyond traditionally recognized contact sports and may also arise in sports such as volleyball and softball.
In discussing the constitutional issues, the Court concluded that states may legitimately rely upon those safety and fairness interests when limiting participation on women’s athletic teams to biological females.
That reasoning is directly relevant to the issues raised in the OCR complaints.
If biological differences are constitutionally sufficient to justify limiting athletic participation in order to protect safety and competitive fairness, they also provide additional support for OCR’s position regarding the scope of Title IX’s single-sex exception. An institution cannot simultaneously claim the legal protections afforded to women’s colleges while disregarding the biological distinctions upon which those protections were created.
I have argued to OCR that prohibiting biological males from enrolling in institutions claiming all-women status would also eliminate the related controversy of biological males competing against female students in women’s athletics at those schools.
Whether OCR ultimately adopts that reasoning remains to be seen. But after today’s Supreme Court decision, I believe the legal foundation supporting the pending Title IX complaints has become substantially stronger. The Court has now expressly recognized that biological differences between the sexes may justify policies designed to protect both safety and competitive fairness in women’s athletics. That recognition is likely to play an important role as OCR evaluates whether institutions claiming single-sex status under Title IX may nevertheless admit biological males while continuing to receive the legal benefits associated with being women’s colleges.
Banzhaf is the Professor of Public Interest Law Emeritus at George Washington University Law School.
