Regulating Gender in School Sports: An Overview of Legal Challenges to State Laws

Regulating Gender in School Sports: An Overview of Legal Challenges to State Laws

Legal Sidebari

Regulating Gender in School Sports: An
Overview of Legal Challenges to State Laws
Updated January 2, 2024
Public debate over the participation of transgender women in women’s sports has proliferated in recent
years, raising questions of fairness in contexts ranging from the Olympics to elementary school sports
teams. School districts and athletics associations typically regulate who can participate in their sports
leagues, and many have implemented policies that allow students to participate on teams that align with
their gender identity at some levels of competition. In the past few years, however, many states have
passed laws preventing transgender women and girls from participating in women’s interscholastic sports.
These laws, which often state their purpose as protecting women’s sports, function by limiting
participation on sports teams “based on the biological sex at birth of team members.” Proponents of this
legislation argue that male physiology confers inherent physical benefits and that “biological females”
have a competitive disadvantage if “biological males” are allowed to play with or against them on
women’s teams. Transgender student-athletes and their parents have contested these laws and the
underlying theories of fairness in several lawsuits across the country. Generally, these lawsuits claim that
such laws violate Title IX of the Education Amendments Act of 1972 (Title IX) and the Equal Protection
clause of the Fourteenth Amendment.
This Legal Sidebar begins by explaining the constitutional and statutory bases for the legal challenges to
policies and laws regulating gender in school sports. It then summarizes the approaches federal district
and appellate courts have taken to these lawsuits across the country and describes the potential for
Supreme Court involvement. The Sidebar concludes by identifying several considerations for Congress.
Legal Context
Equal Protection Clause Claims for Sex Discrimination
The Fourteenth Amendment’s Equal Protection Clause provides that “no state shall . . . deny to any
person within its jurisdiction the equal protection of the laws.” To withstand scrutiny under the Equal
Protection Clause, a law may treat similarly situated persons differently only if there is a sufficient
governmental reason to do so. Whether a governmental classification survives an equal protection
challenge depends on the basis for the classification (i.e., who the law treats differently) and the
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government’s rationale for the classification. Courts apply one of three tiers of scrutiny depending on the
type of classification at issue. The first tier, known as strict scrutiny, applies to classifications on
categories such as race, religion, alienage, and national origin, which the Court has described as “suspect”
classifications. To withstand strict scrutiny, a law that involves a suspect classification must be “narrowly
tailored to serve a compelling governmental interest.” Under the second tier, called intermediate scrutiny,
a so-called “quasi-suspect” classification, including sex-based distinctions, must be supported by an
“exceedingly persuasive justification” that the classification is “substantially related” to “an important
governmental interest.” Laws that discriminate based on non-suspect classifications are subject to the
third tier, rational-basis scrutiny, under which the government must show only that the discriminatory
law is “rationally related” to a “legitimate government interest.” In general, the more suspect the
classification at issue discriminated against, the stronger the government’s justification for that
discrimination must be.
Title IX Claims for Sex Discrimination
Title IX bans sex discrimination in educational institutions that receive federal funding. Sex
discrimination arises under Title IX when the following elements are met: (1) an individual must be
excluded from, denied benefits of, or discriminated against under an educational program due to sex;
(2) the educational program must receive federal funding at the time of the exclusion; and (3) the
individual must be harmed by the treatment.
The Supreme Court has consistently compared Title IX to Title VII of the Civil Rights Act of 1964 (Title
VII), which prohibits making employment decisions on the basis of sex, among other things. The Court’s
Title IX jurisprudence has at times imported Title VII analysis, whereas at other times it has emphasized
the differences between the two statutes. For this reason, developments in the Title VII landscape can be
of significant importance to Title IX litigation. Notably, the Supreme Court’s 2020 decision in Bostock v.
Clayton County held that Title VII’s prohibition on sex discrimination in employment includes
discrimination on the basis of sexual orientation and gender identity. Because of the frequent overlap
between Title VII and Title IX, some federal courts have read Bostock to apply to Title IX. The Supreme
Court has not clarified this issue.
Legal Challenges to State Laws and School Policies
Permissive Policies
Some lawsuits challenge policies that permit transgender women to compete on sports teams that align
with their gender identity. These lawsuits argue that such policies violate Title IX by reducing the odds of
success in athletic competition of a woman whose birth-assigned sex and gender identity align (described
as “cisgender” in some of the judicial rulings discussed below). The argument in these claims is typically
that biological males have inherent physical advantages over biological females and that transgender
women retain those advantages regardless of gender-affirming treatments.
Soule v. Connecticut Association of Schools, Inc.
The Connecticut Interscholastic Athletic Conference allows students to participate on sports teams
consistent with their gender identity, regardless of the gender listed on their birth certificates. In Soule v.
Connecticut Association of Schools, Inc., four members of a high school girls’ track team whose gender
identity aligned with their birth-assigned sex challenged the policy under Title IX, arguing that the policy
limited the ability of students who were “born characteristic female” to succeed in athletics or obtain the
benefits that come from excellent athletic ability, like scholarships. The student-plaintiffs sought

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monetary damages and to remove records set by transgender girls who had participated in the conference.
The conference and member schools were granted a motion to dismiss by the district court. That court
found that the plaintiffs lacked standing because they were not entitled to the relief sought, in part because
the injunctive relief was based on speculation, and damages were unavailable because the conference had
reason to believe that allowing transgender girls to participate on girls sports teams was consistent with,
rather than in violation of, federal law. A panel of the U.S. Court of Appeals for the Second Circuit
affirmed on December 16, 2022. Without deciding the merits, the court concluded that there was no
evidence that the conference’s “facially neutral policy” was intentionally discriminatory in violation of
Title IX.
The Second Circuit, sitting en banc, revisited this decision on December 15, 2023, and changed course:
the court held that the plaintiffs did have standing to challenge the policy. Assuming that the plaintiffs’
factual allegations were correct and that allowing transgender girls to race on girls’ track teams violated
Title IX, the en banc majority that “it is plausible that altering certain public athletic records. . . would at
least partially redress the alleged denial of equal athletic opportunity.” The court also held that the
standing determination does not require deciding whether or not the conference had notice; rather, the
district court should have made this determination alongside the merits of the Title IX claim, The court
remanded the case for the district court to make these determinations.
Restrictive Policies
A second, more common type of lawsuit involves challenges to policies that restrict transgender women
from participating on women’s sports teams. The facts in these lawsuits tend to follow a consistent
formula: a transgender woman plays on or plans to play on a women’s sports team but is prevented from
doing so because of an intervening state law requiring women’s sports participants to be “biologically
female.” Unlike lawsuits addressing permissive policies, lawsuits addressing restrictive policies tend to
include claims for violations of both the Equal Protection Clause and Title IX. The additional Equal
Protection Clause claim typically alleges that these policies wrongfully treat transgender students
differently from peers whose gender identity corresponds with their sex assignment at birth, requiring an
analysis as to the government’s motivation for treating the two groups differently under the law.
Hecox v. Little
On August 17, 2020, the U.S. District Court for the District of Idaho granted a preliminary injunction
against Idaho’s Fairness in Women’s Sports Act, which (1) categorically bans transgender women from
participation in women’s sports; (2) requires physical examinations in the event of a dispute as to an
athlete’s sex; and (3) creates a private cause of action against a school for any student who suffers any
harm due to the participation of a transgender woman on their team. Hecox v. Little involves a challenge
to this law brought by two students: a transgender woman who intended to try out for her university’s
track and cross-country teams but was unable to due to her gender identity and a “cisgender” woman who
played on her high school soccer team but was concerned that competitors may question her sex due to
her “masculine” appearance. The students sought a preliminary injunction on the grounds that the act
violated the Fourteenth Amendment’s Equal Protection Clause and Title IX. The district court agreed,
holding that both plaintiffs had a strong likelihood of success under intermediate scrutiny on the merits of
their Equal Protection claims.
The court rejected the state’s argument that the justification of promoting equality in women’s sports was
“exceedingly persuasive” because transgender women make up less than one percent of the population
and are therefore very unlikely to displace from sports participation any women whose gender identity
aligns with their birth-assigned sex. Furthermore, because the act specifically focuses on “endogenous”
testosterone levels of student-athletes, the court found that the state’s purpose was less likely to be

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leveling the playing field for women than it was purely discriminatory: if the state’s true concern was the
athletic advantage of higher testosterone levels, the court reasoned that the law would regulate an athlete’s
current testosterone levels, rather than what they might have been in the past. The court also held that the
act likely discriminates against “cisgender” women, as it singled out any “masculine” looking athletes on
a women’s sports team for a potentially invasive physical or genetic test. The court explained that “it
appears that the Act hinders those benefits [that flow from success in athletic endeavors] by subjecting
women and girls to unequal treatment, excluding some from participating in sports at all, incentivizing
harassment and exclusionary behavior, and authorizing invasive bodily examinations.” The court did not
address the Title IX claim, as it was not included in the original petition for initial relief.
After granting the preliminary injunction, the district court determined that the case did not become moot
when one of the plaintiffs withdrew from her university before returning and planning to try out for the
track and cross country teams again in fall 2023. The Ninth Circuit upheld the district court’s decision on
the mootness issue on January 30, 2023. On August 17, 2023, the Ninth Circuit also upheld the district
court’s grant of a preliminary injunction, holding that the plaintiffs were likely to succeed on the merits of
their equal protection claims. The Ninth Circuit reasoned that, based on the pleadings, the state had
categorically banned transgender girls and women from participating in school sports without evidence
that the ban was substantially related to the state’s interests in equal opportunity in women’s sports. A trial
on the merits remains pending.
D.N. v. DeSantis
D.N. v. DeSantis is a case in the U.S. District Court for the Southern District of Florida challenging
Florida’s “Fairness in Women’s Sports Act,” which limits participation on public secondary and post-
secondary women’s sports teams to women whose gender identity corresponds to the sex they were
assigned at birth, and creates a cause of action against a school for students who “suffer direct or indirect
harm” as a result of a violation of the act. D.N., a transgender girl, filed claims against Florida under the
Equal Protection Clause and Title IX, alleging that the act discriminated against her on the basis of
transgender status and would prevent her from playing soccer with the teams she has been playing with
for years.
The district court stayed this case pending the Eleventh Circuit’s decision in Adams v. School Board of St.
Johns County. Adams, which involved a school policy that banned transgender students from using the
bathroom matching their gender identity, held that the policy does not violate the Equal Protection Clause
or Title IX. On the Equal Protection question, the Eleventh Circuit held that the bathroom policy
withstood intermediate scrutiny because it is related to an important privacy interest of students using the
bathroom only with their same “biological sex” and is “clearly related” to that interest. On the Title IX
question, the court did not find discrimination on the basis of sex because the court saw Title IX as
banning discrimination on the basis of “biological sex,” rather than gender identity. Thus, the court ruled
that Title IX allowed for bathrooms to be segregated on the basis of gender identity. The Eleventh
Circuit’s decision in Adams may be determinative for the district court’s decision in D.N. No decision has
been made in this case.
A.M. v. Indianapolis Public Schools
In July 2022, the Indiana state legislature passed a bill that banned students who were determined to be
male at birth from participating on sports teams designated for girls or women. The Southern District of
Indiana addressed a Title IX claim brought by A.M., a ten-year-old transgender girl, who was told that the
new law barred her from playing on her school’s girls softball team. Applying the Supreme Court’s Title
VII analysis in Bostock v. Clayton County to Title IX in line with the Seventh Circuit’s 2017 decision in
Whitaker v. Kenosha Unified School District, the court held that laws treating students differently on the
basis of transgender status are illegal under Title IX. While A.M. also raised an Equal Protection claim,

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the court did not address this claim in granting the preliminary injunction reserving that issue for
discussion on the merits. The Seventh Circuit declined to hear an appeal brought by the school district.
The district court has not yet resolved the merits of the case.
B.P.J. v. West Virginia Board of Education
B.P.J. v. West Virginia Board of Education is a challenge to the West Virginia “Save Women’s Sports Act.”
The act, which became law on April 28, 2021, provides that only “biological females” can participate in
women’s sports in all public interscholastic, intercollegiate, intramural, or club sports teams at the
secondary or post-secondary level, categorically barring transgender women. Like the other restrictive
policies discussed above, the act also creates a cause of action for any student who “suffers any direct or
indirect harm as a result of a violation” of the act.
The case was brought by a transgender girl about to enter middle school who wanted to participate on her
middle-school girls’ cross country and track teams but was barred from participation by the act. The
plaintiff alleged that the act violated the Equal Protection Clause and Title IX because it unlawfully
discriminated based upon sex. The U.S. District Court for the Southern District of West Virginia decision,
by Judge Joseph R. Goodwin, initially agreed and granted a preliminary injunction on July 21, 2021. On
the constitutional issue, Judge Goodwin applied intermediate scrutiny and found that, as applied to B.P.J.,
the law “is not substantially related to providing equal athletic opportunity for girls.” Because B.P.J. was
on puberty blockers and was participating in a non-contact sport, Judge Goodwin did not find the
government’s alleged interest in keeping transgender girls out of sports to be valid. Judge Goodwin’s
analysis of the Title IX claim also found B.P.J. likely to win on the merits because she was clearly
discriminated against due to her biological sex and harmed in that she would not be able to participate on
a sports teams that aligns with how she presents herself to and experiences the world.
That same court’s decision on the merits, which it announced on January 5, 2023, reversed course and
held that the West Virginia law did not violate either the Equal Protection Clause or Title IX. On the Equal
Protection issue, Judge Goodwin applied intermediate scrutiny to the West Virginia law and held that the
athletic advantage that testosterone gives biological males is substantially related to the state’s important
interest in promoting fair women’s sports. Judge Goodwin also held that “Title IX used ‘sex’ in the
biological sense because its purpose was to promote sex equality,” and therefore West Virginia’s law did
not violate Title IX. On February 7, 2023, Judge Goodwin denied a stay pending appeal, meaning that
West Virginia could enforce the law against B.P.J. while the case awaited a hearing before the Fourth
Circuit. The Fourth Circuit overturned the district court’s denial of a stay pending appeal on February 22,
and the Supreme Court denied an application for review of that decision on April 6, leaving the Fourth
Circuit’s ruling in place.
Potential Supreme Court Involvement
The Supreme Court has not expressly held whether transgender status is a quasi-suspect classification
subject to intermediate scrutiny or whether transgender status is protected under Title IX. In June 2021,
the Court declined to hear an appeal of Grimm v. Gloucester County School Board, a Fourth Circuit case
holding that Title IX protects against discrimination on the basis of gender identity in the context of
access to bathrooms and other gender-segregated facilities. The Court indicated that Justices Thomas and
Alito would have granted the petition for certiorari, but neither Justice wrote a dissent. The decision not to
hear Grimm aligned with the Court’s denial of a petition for certiorari in Parents for Privacy v. Barr, a
Ninth Circuit case addressing a similar issue, in December 2020.
Most recently, the Court’s April 2023 denial in B.P.J. of a stay pending appeal drew a dissent from Justice
Alito, joined by Justice Thomas. While the dissent was on procedural grounds, it suggests that there might

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be at least two future votes in favor of deciding whether Title IX or the Equal Protection Clause protect
students against discrimination on the basis of gender identity.
As discussed in another CRS Legal Sidebar, lower courts have disagreed over whether laws prohibiting
transgender individuals from access consistent with their gender identity are subject to heightened
constitutional scrutiny. It remains to be seen whether the Supreme Court will agree to hear a case on this
issue.
Congressional Considerations
The statutory and legal landscape of regulating gender in sports is in flux. The various challenges to these
state laws and policies have resulted in conflicting court decisions, and many of the cases remain pending
decisions on the merits. The courts will likely have a role in determining which laws regulating sports
participation based on gender identity are permissible, and the Department of Education has already
proposed amending Title IX regulations to address this topic. Congress also has several options if it
wishes to shape this debate. The House’s recent passage of H.R. 734, which amends Title IX to require
athletes on sports teams designated for females to be “biologically female,” represents one way federal
legislation might address this issue. If H.R. 734 or another bill restricting sports participation on the basis
of “biological sex” ultimately passes, it may be impacted by future Supreme Court decisions, as courts
have not definitively addressed which level of scrutiny should apply when reviewing classifications based
on gender identity. A future Supreme Court decision imposing intermediate scrutiny on such
classifications would likely make it more difficult for H.R. 734 or like bills to survive an Equal Protection
challenge. Alternatively, if Congress wishes to insulate transgender girls and women from state legislation
like that discussed above, it could amend Title IX to explicitly require recipients to allow students to
participate on the teams that match their gender identities. Such permissive legislation is less likely to
face challenges under the Equal Protection Clause, though it could face other legal challenges. Congress
could also let these issues proceed in the courts without taking legislative action, which may lead to a
patchwork of permissive and restrictive policies across the country.

Author Information

Madeline W. Donley

Legislative Attorney

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LSB10993 · VERSION 4 · UPDATED