What Will The Supreme Court Say About Sex?

Apr 17, 2026

By Regina Coleman, JD

Transgender rights have gained significant attention within the last decade. One of the most prominent issues has been states’ ability to regulate school athletic participation according to an athlete’s biological sex at birth. Currently, twenty-nine states have laws, regulations, and/or agency policies that ban transgender students from participating in sports aligned with their gender identity.[21] The Court decided to examine whether such laws violate the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972, as the Court heard in the current cases, West Virginia v. B.P.J. and Little v. Hecox. At the time of this article’s publication, the Court had not released its holding. However, whichever way the Court decides, its decision will have profound effects on education, sports, women, and society. 

Transgender is a broad term for people whose gender identity differs from the biological sex assigned at birth. Transgender males were assigned female at birth and now live as males, and similarly for transgender females. West Virginia and Idaho passed laws that restricted athletes’ team participation based on the sex assigned at birth. B.P.J. and Hecox were two transgender women from West Virginia and Idaho, respectively. When they could not participate in school sports teams that aligned with their gender identity, they chose to challenge their states’ laws. Their cases progressed through the lower courts, and both reached the Supreme Court in January 2026.  

Title IX addresses all aspects of sex discrimination in education, including hiring, firing, tenure, pregnant and parenting students, and programs such as athletics. When Congress passed Title IX in 1972, it did not define “sex.” Instead, Congress left it to the Department of Health, Education, and Welfare (later renamed the Department of Education) to issue enforcement regulations. In 1975, HEW announced rules requiring “every educational institution that receives federal financial assistance to submit a document certifying compliance with Title IX.” These rules gave high schools and colleges three years, and elementary schools one year to achieve compliance. Educational institutions also had to assess whether their policies and procedures met Title IX standards or explain how they planned to do so. However, the HEW regulations still did not define sex.  

In 2016, Obama’s DOE and DOJ issued a joint guidance that asserted that Title IX’s prohibition of sex-based discrimination encompassed gender identity.[22] It was to ensure all

students could receive an education in a discrimination-free environment.[23] U.S. Secretary of Education John B. King Jr. stated, “No student should ever have to go through the experience of feeling unwelcome at school or on a college campus.”[24]

Under the 2016 ordinance, students could use sex-segregated facilities that matched their gender identity. In 2017, the Trump administration revoked this part of the ordinance. In a joint letter, the DOJ and DOE stated, “[The] withdrawal of [the] guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure all students, including LGBT students, are able to learn and thrive in a safe environment.”[25] However, access to sex-segregated facilities should be decided by states and local school districts.[26] The DOJ and DOE also noted that the 2016 ordinance lacked sufficient legal analysis to support its position under Title IX’s explicit language and did not follow a formal public process.[27]

In 2021, the Biden administration’s DOE reaffirmed that sex discrimination under Title IX includes the idea that individuals should have access to sex-segregated facilities like restrooms that align with their gender identity. The DOE based this position on the Supreme Court’s 2020 decision in Bostock v. Clayton County. The Court ruled in Bostock that Title VII’s prohibition of sex discrimination in the workplace also covers discrimination based on sexual orientation and gender identity.[28] Therefore, the DOE reasoned that gender identity should be protected from sex discrimination in all areas, including sex-segregated facilities.

On Trump’s first day of office in 2025, Trump signed an executive order to reverse the Biden administration’s stance. The order stated, “‘Sex’ shall refer to an individual’s immutable biological classification as either male or female… ‘Gender identity’ reflects a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.”[29] The Executive Order went on to say that the Supreme Court’s holding in Bostock misapplied the identification of sex discrimination to be inclusive of gender identity.[30]

With the Executive branch constantly shifting its stance on sex discrimination under Title IX, the Court may cease to refer to the agencies’ interpretation of the law. The Court stated in Auer v. Robbins that courts should defer to federal agencies when interpreting their own ambiguous regulations, unless the interpretation is “plainly erroneous or inconsistent with the regulation.”[31] In 2019, Kisor v. Wilkie upheld Auer but significantly weakened it by requiring the regulation to be genuinely ambiguous, the interpretation to be rational, and agencies’ authoritative position to include expertise and demonstrate a “fair and considered judgment.”[32] With the agencies’ ever-changing stance on transgender students in education, arguments can be made that their positions are not fair, considered, supported by expertise, or rational. Therefore, the Court would need to rely on its own interpretation to determine issues of sex discrimination involving transgender individuals. 

Following Bostock, the Court upheld in U.S. v. Skrmetti the Tennessee law that banned puberty blockers and hormones for transgender minors. The Court decided that the law was valid because it was not based on sex since it involved protecting minors’ health and should be reviewed under rational basis. Additionally, in Mirabelli v. Bonta, the Court declared unconstitutional California policies that prevented school administration from informing parents of students’ transition regarding identity and pronouns.[33] The Court argued that parents have the right to know what is happening with their children.

In West Virginia v. B.P.J., the Court will need to take a definitive stance on what sex means under Title IX. To understand how the Court will decide, one must go back to Constitutional Law 101. The Equal Protection Clause states, “…nor shall any State… deny to any person within its jurisdiction the equal protection of the laws.”[34] Because the case concerns potential sex discrimination, the Court will likely apply intermediate scrutiny to determine whether the state government violated the Equal Protection Clause.

The Supreme Court has allowed state laws that discriminate on the basis of sex to remain in effect under intermediate scrutiny. To meet the Court’s standards, governments must show they have not violated the Supremacy Clause or any other part of the Constitution. One such case was Califano v. Webster, in which the Court held in 1977 that the Social Security Act did not violate due process when women were permitted to calculate retirement benefits without including low-earning years. The Court stated that Congress intended to counteract prior discrimination against women. Holdings such as Califano can support a holding in West Virginia v. B.P.J. that a law may have a sex-discrimination effect and still pass intermediate scrutiny.

Supporters of biological sex argue that higher testosterone levels, whether from biology or pharmacology, confer an unfair advantage. Therefore, biological sex should determine how athletic teams are divided. However, not everyone fits neatly into binary sex categories, including intersex individuals. Intersex is an umbrella term for people who do not fit within the male/female binary.[35] Intersex people make up about 1.7% of society, the same percentage as redheads, and they can have a wide range of natural variations.[36] These variations can affect genitals, gonads, hormones, chromosomes, or reproductive organs.[37] Sometimes, these characteristics are noticeable at birth, may develop at puberty, or never manifest at all.[38]

There are various presentations of intersex phenotypes, such as males with androgen insensitivity. Their bodies’ receptors respond to testosterone partially or not at all, so they may present phenotypically as female. Also, there are women with hyperandrogenism who produce higher-than-normal testosterone levels. It has been debated whether these females should be forced to take hormone-blocking agents, even though their bodies naturally make testosterone. When faced with such situations, the Court’s West Virginia v. B.P.J. decision may be subject to future critique.

Sports such as basketball, swimming, tennis, and volleyball value traits that are minimally affected by hormone-blocking drugs, such as height and wingspan. Recruited students are more likely to earn scholarships, set state, national, and world records, receive NIL compensation, and pursue future careers. When individuals break records at various levels, questions about fairness in sports can arise. Once records are broken, it becomes difficult to break them again.

The separation of the sexes in sports is largely due to testosterone. Research shows that after puberty, males produce twenty times more testosterone than females. This higher level of testosterone promotes greater muscle growth, bone development, and red blood cell production. Before puberty, there is no difference in athletic performance between males and females. After puberty, males have significant advantages in running, jumping, swimming, and grip strength.

If the Court decides that sex includes gender identity, its previous decision in U.S. v. Skrmetti could be challenged. A favorable holding for B.P.J. and Hecox would allow them to play on teams that align with their gender identity. However, B.P.J. and Hecox could participate on these teams only if they were receiving hormone-blocking therapy. If a state prevents a minor from receiving therapy, as Tennessee does, the minor would be unable to participate on sports teams that align with their gender identity. Future judicial proceedings on transgender rights could again come before the Court. 

In addition, the Court must consider the feasibility of enforcing Title IX’s prohibition on gender identity discrimination. The Court must also determine when hormonal therapy should be administered. According to the National Institutes of Health, puberty typically begins between ages 9 and 14 in boys and between 8 and 13 in girls. It may be difficult for a state legislature to pass laws requiring 8- and 9-year-olds to start hormone therapy that could affect their health for decades.

As families, high school athletic associations, and state legislatures decide whether someone can start hormone-blocking treatment, time keeps passing. The transgender athlete cannot join teams that align with their gender identity. If the Court rules that transgender individuals don’t need to wait to begin hormonal therapy to compete, cisgender females could face even more unfair disadvantages beyond height and wingspan.  

There are certain characteristics of cisgender female biology that will not be experienced by a transgender female, such as pregnancy. Before Title IX was enacted in 1972, if a student became pregnant, her formal education in high school or college typically ended.[39] In 2007, Cassandra Harding lost her full athletic scholarship at the University of Memphis. Harding was required to sign a contract stating she would lose her scholarship under specific conditions, such as drug use, assaulting a coach, or pregnancy.[40] Reports also exist of students from other schools who had terminated their pregnancies to avoid losing their scholarships.[41] In 2019, Olympian Allyson Felix discussed in The New York Times how she lost 70% of her Nike sponsorship when they found out she was pregnant.[42] The transgender females’ inability to become pregnant can be a competitive advantage in the eyes of schools and sponsors.

The Court can consider a third option. The Supreme Court’s relationship with the government is part of one of the country’s most noteworthy triads: the Judicial, Executive, and Legislative branches. Since the Supreme Court lacks clear guidance from the Executive branch, it can turn to Congress for input. The Judicial branch’s role is to interpret laws, not to create them. It is Congress’s responsibility to make laws. Ultimately, the Supreme Court may prefer not to be the decision-maker on whether someone is male, or female based solely on hormones and genetics.

  1. Bans on Transgender Youth Participation in Sports, Movement Advancement Project, (last viewed on Mar. 7, 2026, https://www.lgbtmap.org/equality-maps/youth/sportsparticipation_bans. ↑

  2. U.S. Departments of Justice and Education Release Joint Guidance to Help Schools Ensure the Civil Rights of Transgender Students, DOJ, (May 13, 2016), https://www.justice.gov/archives/opa/pr/us-departments-justice-andeducation-release-joint-guidance-help-schools-ensure-civil-rights. ↑

  3. Id. ↑

  4. Id. ↑

  5. Dear Colleague Letter, DOJ & DOE, https://www.ed.gov/sites/ed/files/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf (Feb. 22, 2017). ↑

  6. Id. ↑

  7. Id. ↑

  8. Bostock v. Clayton County, Georgia, 590 U.S. 669 (2020). ↑

  9. Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, The White House, https://www.whitehouse.gov/presidential-actions/2025/01/defending-women-from-gender-ideology-extremism-and-restoring-biological-truth-to-the-federal-government/ (Jan. 20, 2025). ↑

  10. Id. ↑

  11. Auer v. Robbins, 519 U.S. 452, 61 (1997). ↑

  12. Kisor v. Wilkie, 588 U.S. 558, 79 (2019). ↑

  13. Mirabelli v. Bonta, 146 S.Ct. 797 (2026). ↑

  14. U.S. Const. amend. XIV, § 1. ↑

  15. Amnesty Intl., Its Intersex Awareness Day – Here Are 5 Myths We Need to Shatter,

    https://www.amnesty.org/en/latest/news/2018/10/its-intersex-awareness-day-here-are-5-myths-we-need-to-shatter/. ↑

  16. Id. ↑

  17. Id. ↑

  18. Id ↑

  19. Turning Points in American Sports, History Now (2010) https://www.gilderlehrman.org/history-resources/essays/impact-title-ix. ↑

  20. Id. ↑

  21. Clemson Athletes Say They Had Abortions, School Policy to Blame, WLTX (last updated May 15, 2007), https://www.wltx.com/article/news/clemson-athletes-say-they-had-abortions-school-policy-to-blame/101-382219073. ↑

  22. Allyson Felix, Allyson Felix: My Own Nike Pregnancy Story, N.Y. Times, (May 22, 2019), https://www.nytimes.com/2019/05/22/opinion/allyson-felix-pregnancy-nike.html?unlocked_article_code=1.X1A.5RgY.A9ggpfQ1wsUp&smid=url-share. ↑

Articles in Current Issue