States Poised To Win Supreme Court Battle Over Men In Women's Sports, Legal Experts Predict
Authored by Matthew Vadum via The Epoch Times (emphasis ours),
The U.S. Supreme Court will uphold two state laws that ban male athletes who don’t identify with their sex from competing on school sports teams intended for females, legal experts say.
Their comments come as the nation’s highest court prepares to hear back-to-back oral arguments on Jan. 13 in Little v. Hecox and West Virginia v. B.P.J.
Idaho and West Virginia argue their respective laws comply with the 14th Amendment to the Constitution. Its equal protection clause says no state “shall … deny to any person within its jurisdiction the equal protection of the laws.”
The states also say their laws do not violate Title IX, a federal civil rights law that forbids sex-based discrimination at any school that receives federal funding.
Currently, 27 states have bans preventing males who identify as transgender from participating in girls’ and women’s sports, according to a report by the Williams Institute at the UCLA School of Law.
Advocates for transgender participation on female sports teams say these state bans are discriminatory and divisive.
The American Civil Liberties Union (ACLU), which is representing the transgender-identifying athletes in both cases, said in September 2025 that such athletes have been “the focus of a relentless media campaign designed to make their participation seem like a threat to girls who are not transgender.”
The group said those on the other side want “a sweeping legal precedent that endangers transgender people (and other people, including gay, lesbian, and bisexual people, and all women) across our lives, not just in sports.”
Idaho Case
Little v. Hecox is about Idaho’s Fairness in Women’s Sports Act, “which ensures that women and girls do not have to compete against men and boys, no matter how those men and boys identify,” according to the petition filed in the case.
Lindsay Hecox [seriously?], a male who identifies as female, wanted to compete on a university’s women’s track and cross-country teams. Hecox sued, arguing the law violates the equal protection clause and Title IX.
A federal district court issued a preliminary injunction blocking the act so Hecox could try out for the teams. The court ruled the act discriminates against transgender-identifying athletes.
“The physiological differences,” between females and males, “do not overcome the inescapable conclusion that the Act discriminates on the basis of transgender status,” the petition said.
The U.S. Court of Appeals for the Ninth Circuit affirmed the injunction, holding that laws making sex-based distinctions in schools serve as “proxy discrimination” against transgender-identifying athletes.
West Virginia Case
West Virginia v. B.P.J. is about that state’s Save Women’s Sports Act, which stipulates that female teams based on “competitive skill” or involving “a contact sport” must exclude males.
State lawmakers voted to keep the sexes separate in sports because of the “inherent physical differences between biological males and biological females,” according to the petition filed in the case.
B.P.J., a young male high school student who identifies as female, sued, arguing the law’s “biology-based distinction” violates Title IX and the equal protection clause. A district court initially blocked the law, then reversed itself, finding there was “no genuine dispute that biological males have physiological advantages over biological females.”
The U.S. Court of Appeals for the Fourth Circuit reinstated the block, finding the district court was wrong to rule for the state because “there is a genuine dispute of material fact” over whether those born male “enjoy a meaningful competitive athletic advantage over” young women born female.
The circuit court also held that the district court should have granted summary judgment to B.P.J. on his Title IX claim because the state law unlawfully excluded him from participating in sports.
What the Lawyers Say
Jim Burling, senior counsel at Pacific Legal Foundation, a public interest law firm, said he is predicting the Supreme Court “is going to find that men are men and women are women.”
The court won’t find that gender identity is protected under Title IX, enacted in 1972, or the 14th Amendment, ratified in 1868, because the concept was unknown when they took effect, Burling told The Epoch Times.
Title IX was adopted to make sure that girls and women could participate in school sports on an equal basis with boys and men, he said. No one believes that transgender identity was part of what was being protected under the law, he added.
The text of the equal protection clause “doesn’t talk about transgenderism—it doesn’t even anticipate it being an issue,” he noted.
“You cannot graft a modern-day concern onto the language of a constitutional provision that’s over a century old,” he said.
Burling said the Supreme Court’s landmark decision last year in United States v. Skrmetti offers a clue as to how the court will rule.
The Tennessee law in Skrmetti forbids all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a [disagreement] between the minor’s sex and asserted identity.”
The high court rejected the argument that Tennessee’s ban on transgender procedures for children, such as the use of puberty blockers and cross-sex hormones on minors, was an example of discrimination, he said.
The ban was “an exercise of the state’s police power and power to regulate medical practice,” he added.
The conservative-leaning Supreme Court, which embraces “a text-based, originalist understanding of the Constitution,” will not find that state laws prohibiting males from competing in women’s sports are unconstitutional, he said.
“I think the statutes are going to be upheld at least by 5–4 or maybe 6–3,” Burling said.
Steven J. Allen, a senior fellow at the National Legal and Policy Center, said he expects the Supreme Court will uphold the state laws by a 6–3 or 8–1 vote.
The Supreme Court is not going to say you can’t segregate sports teams by sex because that would eliminate most women’s sports, Allen said.
Then there is the privacy issue, he said. In our society, people in public facilities shower with others of the same sex and use dressing rooms that are sex-segregated, “and there’s no way that could be unconstitutional,” he added.
Supreme Court ‘Can’t Invent New Constitutional Rights’
Carrie Severino, president of JCN (formerly the Judicial Crisis Network), predicted the Supreme Court “will clarify that transgender status is not a suspect or quasi-suspect class, as it doesn’t fit into the types of classes that have been recognized historically as suspect or quasi-suspect classes.”
“The court cannot simply invent categories of constitutional protection,” she told The Epoch Times.
In constitutional law, a suspect classification is a class or group of individuals meeting criteria that suggest they are likely the subject of discrimination.
A quasi-suspect classification refers to groups such as those based on gender or legitimacy of birth. When a law involves a suspect or quasi-suspect classification, courts apply strict scrutiny, meaning they look at whether the law at issue serves a compelling government interest and uses the least restrictive means to achieve that interest.
“For the Supreme Court to step in and invent new constitutional rights that would have been absolutely shocking to those people who ratified the 14th Amendment, for them to jump in and cut off the right of citizens to pass the laws that they feel are appropriate to protect women in their states, that would be inappropriate,” she added.
Kristen Waggoner, president of the Alliance Defending Freedom, a public interest law firm that is part of Idaho’s legal team in the Supreme Court case, said the statutes in Idaho and West Virginia serve the interests of women.
“Women deserve equal opportunity, fairness, and privacy, and states have the right to recognize biological distinctions when those distinctions matter, and they matter greatly on the athletic field,” she said at a Jan. 8 press conference.
When state laws protecting women’s sports aren’t allowed to be enforced, women and girls are “losing the opportunity to be on the field in terms of fairness,” but their safety and privacy in private spaces are placed in jeopardy, Waggoner said.