Little v. Hecox, 609 U.S. ____ (June 30, 2026); West Virginia v. B.P.J., 609 U.S. ___ (June 30, 2026)
In Little v. Hecox, the U.S. Supreme Court held that states may enact laws limiting participation on female athletic teams to biological females and that such laws are consistent with both Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court decided Hecox alongside West Virginia v. B.P.J. Both cases involved biological males who identify as female seeking to participate on their schools’ women’s and girls’ sports teams.
Background
In Hecox, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction barring enforcement of Idaho’s law, reasoning that the state had not shown that its categorical ban satisfied heightened scrutiny. In B.P.J., the U.S. Court of Appeals for the Fourth Circuit had held that West Virginia’s law violated Title IX as applied to B.P.J. and that the lower court should not have granted summary judgment as to the Equal Protection claim. The states sought certiorari, and the Supreme Court conducted oral argument in January 2026.
Supreme Court’s Decision
On the Title IX statutory question, the Supreme Court’s holding was unanimous. Writing for the majority, Justice Kavanaugh reversed the Ninth and Fourth Circuit decisions and remanded both cases for further proceedings. Most notably, the Supreme Court interpreted both laws as drawing lines on the basis of biological sex rather than on the basis of transgender status. The court held that the term “sex” in Title IX, the Javits Amendment, and the Title IX regulations cannot be read to mean anything other than biological sex. It further held that separate sports teams for biological males and biological females are reasonable given the inherent physical differences between the sexes, which can raise concerns about safety and competitive fairness.
Turning to the Equal Protection Clause, the Supreme Court was divided, yielding a 6-3 holding. The court treated both laws as sex-based classifications subject to only intermediate — not strict — scrutiny. Under that standard, a sex-based classification is permissible only where it is “substantially related” to an “important” governmental objective. The court held that preventing serious injury and preserving athletic opportunities are important governmental interests, and that each law is substantially related to those interests. The Supreme Court also held that neither state was required to create exemptions calling for individualized, case-by-case comparisons. The majority explained that the Equal Protection Clause is not a vehicle for resolving matters marked by serious debate and medical or scientific uncertainty; the legislature, the Supreme Court concluded, is better suited to making policy judgments in this area.
The Dissents
Justice Sotomayor (joined by Justice Kagan) and Justice Jackson ― though concurring in the judgment as to the Title IX issue ― also each dissented, focusing on the principle that the government and its laws should treat citizens as individuals rather than as members of a class. Both dissents questioned how the laws could avoid using an overbroad classification to discriminate against a smaller, discrete class. They also emphasized that, although the majority framed biological males who identify as female as too small a class to warrant Equal Protection Clause concern, this same group is treated as an existential threat to female athletics. Although the majority rejected the argument that the laws classify based on transgender status, all members of the court generally understood the laws to draw distinctions based on sex.
Key Takeaways
- Distinct questions left untouched: Hecox and P.J. should not be read to address or limit participation by biological females on male or co-ed teams. Nor does the majority opinion answer whether states may allow biological males who identify as female to participate on girls’ and women’s teams.
- Level of scrutiny: The majority pointedly declined to identify what level of scrutiny would apply if these laws were understood to classify based on transgender status or gender identity.
- Medical and scientific debate: In areas of significant medical or scientific uncertainty, the decision signals that legislatures may be better positioned to set policy, and that the Supreme Court will be hesitant to invalidate such laws.
- Pending litigation over biological-sex eligibility rules: Many pending challenges to similar statutes may be affected or dismissed, as challengers now face a substantially higher hurdle.
The appellate advocates at FBT Gibbons have a proven track record of success in appeals involving questions of first impression, bet-the-company judgments, and decisions that shape the rules under which our clients will operate well into the future. For more information, please contact the author or any other member of the firm’s Appellate team.
*Azura Jorda, a 2L at the University of San Francisco School of Law, contributed to this article while working as a summer associate at FBT Gibbons.