Is separating boys’ and girls’ sports teams by biological sex at birth a violation of federal law, or a fair policy rooted in reality? That’s the question at the heart of a pivotal Supreme Court case this week.
On Tuesday, the Supreme Court heard oral arguments in West Virginia v. B.P.J., a case challenging whether Title IX of the Education Amendments of 1972 and the 14th Amendment’s Equal Protection Clause permit states to designate sports teams based on biological sex determined at birth. The arguments centered on the legal and practical implications of such policies. Justice Ketanji Brown Jackson’s questions and comments during the session drew particular attention, as did responses from lawyers on both sides.
According to the Daily Caller, the issue has sparked intense debate over fairness, safety, and the definitions of sex and gender in educational settings. While the legal arguments unfolded, many are questioning how the court will balance competing interests in this culturally charged arena.
During the arguments, Justice Jackson pressed West Virginia Solicitor General Michael Williams on the state’s policy, focusing on how it defines eligibility for girls’ teams. She suggested the rule hinges on a narrow view of who qualifies as a “girl.”
“We’re saying only people who were, um, girl assigned at birth qualify,” Jackson stated, interrupting Williams to clarify her understanding of the policy’s impact. Her framing implies a distinction between biological sex and gender identity, a point that critics argue muddies the waters of an already complex issue.
Let’s be clear: biological sex isn’t “assigned” like a homework grade—it’s a measurable reality at birth. Policies like West Virginia’s aim to preserve fairness in competition by recognizing inherent physiological differences, not to exclude for exclusion’s sake. Jackson’s wording risks turning a scientific fact into a subjective debate.
Williams pushed back, arguing that the policy doesn’t target transgender athletes out of animus. He noted that if the state’s intent were discriminatory, the law would have been crafted differently. His point underscores that the focus is on consistency in classification, not personal identity.
On the other side, Joshua Block, an ACLU lawyer representing the transgender athlete in the case, argued that excluding his client serves no purpose if physiological differences are negligible. “If the evidence shows there are no relevant physiological differences between B.P.J. and other girls, then there’s no basis to exclude [him],” Block said. His hypothesis suggests that individual circumstances should override broad rules.
But here’s the rub: even with medical interventions, fundamental differences between male and female physiology often persist, especially in competitive sports. Fairness isn’t just about one athlete; it’s about protecting the integrity of women’s sports as a whole. Block’s argument, while empathetic, sidesteps the broader implications for female athletes.
Jackson’s questions weren’t limited to this case; in a separate matter on Tuesday, she raised hypotheticals about transgender athletes who, due to medical interventions, might not pose the same competitive concerns. Her musings suggest a willingness to carve out exceptions based on individual circumstances. But is that a slippery slope?
Policies built on exceptions can erode the very standards they’re meant to uphold. If physical competition and safety are the state’s goals, then consistent rules—not case-by-case feelings—must govern. Jackson’s approach, while well-intentioned, risks undermining the clarity needed in law.
Then there’s the cultural backdrop: Jackson’s past reluctance to define “woman” during her confirmation hearing—famously saying, “I’m not a biologist”—looms large. Some argue this hesitancy hints at a broader discomfort with grounding legal reasoning in biological facts. It’s a fair critique when science, not sentiment, should anchor sports policy.
Block’s additional point about exclusion stigmatizing transgender athletes carries emotional weight, no question. But emotional appeals can’t override the practical need for equitable competition. Women’s sports have long fought for equal footing; diluting that with inconsistent standards helps no one.
Ultimately, West Virginia v. B.P.J. isn’t just about one athlete or one state—it’s about whether federal law will prioritize biological reality over evolving social concepts. The Supreme Court’s ruling will set a precedent for schools nationwide. Let’s hope it respects both fairness and the dignity of all involved, without sacrificing one for the other.