In 2020, Idaho enacted the “Fairness in Women’s Sports Act,” a law which provides that “Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex,” and explains that “sex” is biological sex, not gender identity. In 2021, West Virginia enacted the “Save Women’s Sports Act,” a law which is substantially similar to that enacted by Idaho. In effect, the laws enacted by Idaho and West Virginia prohibit transgender females from participating on female sports teams. Following the passage of these laws, 25 other States enacted similar laws “that maintain women’s and girls’ sports exclusively for biological females.”
Shortly after Idaho enacted the “Fairness in Women’s Sports Act,” Lindsay Hecox (Hecox), a transgender female, sued Idaho officials and agencies for violations of the Equal Protection Clause of the Fourteenth Amendment (Equal Protection Clause). Likewise, B.P.J., a transgender female, sued West Virginia officials and agencies for violations of Title IX of the Education Amendments of 1972 (Title IX) – a federal civil rights law that prohibits discrimination based on sex in any education program or activity that receives federal financial assistance – and the Equal Protection Clause.
On June 30, 2026, the United States Supreme Court (the Court) issued a decision in connection with West Virginia v. B.P.J. and Little v. Hecox. Writing for the majority, Justice Kavanaugh stated, “Consistent with Title IX and the Equal Protection Clause, … States may maintain women’s and girls’ sports for biological females. They may determine eligibility for women’s and girls’ sports based on biological sex. The Constitution and Title IX do not require an overhaul of women’s and girls’ sports throughout America” (emphasis added).
With regard to B.P.J.’s Title IX claim, the Court held that Title IX bars “discrimination on the basis of sex,” and the regulations that implement Title IX “expressly permit schools to maintain separate teams for ‘members of each sex.’” According to the Court, the term “sex” in Title IX and its implementing regulations “cannot plausibly be interpreted to refer to anything other than biological sex.” Moreover, “Title IX regulations allow separate sports teams precisely because of the biological differences between the sexes—namely, the inherent physical differences between biological women and biological men.”
As for B.P.J.’s and Hecox’s Equal Protection Clause claims, the Court held that the “States’ interests in ensuring safety and competitive fairness amply justify the States in maintaining women’s and girls’ sports for biological females” and, “the States’ sex-based classification—limiting women’s and girls’ sports to biological females—is substantially related to those interests.” Therefore, “schools may determine eligibility for women’s and girls’ sports based on biological sex.”
Of note, and in a footnote to the decision, the Court stated:
… these cases do not present the distinct question of whether, under Title IX and the Equal Protection Clause, schools may allow biological males who identify as female to participate on girls’ and women’s sports teams. That question is currently the subject of litigation in some lower courts. Nothing in this opinion is intended to decide that question. In addition, nothing in this opinion should be interpreted to address or limit participation by biological females on male or co-ed sports teams.
Based on the Court’s footnote, it is clear that the Court’s decision is limited to whether States can enact laws which permit schools to maintain women’s and girls’ sports solely for biological females.
Even though West Virginia v. B.P.J. and Little v. Hecox authorize States to enact legislation that could prohibit transgender women and girls from participating on any women’s and girls’ sports teams, the legality of any such theoretical legislation in New Jersey would need to bear in mind the breadth of the New Jersey Law Against Discrimination (LAD). The LAD is one of the most comprehensive and expansive anti-discrimination laws in the country, and strictly prohibits discrimination based upon, among other things, a person’s affectional or sexual orientation, gender identity or expression, or sex. In this way, New Jersey law offers greater and more extensive protections than Title IX.
Additionally, in terms of interscholastic high school sports in New Jersey, many boards of education are, as authorized by N.J.S.A. 18A:11-3, members of the New Jersey State Interscholastic Athletic Association (NJSIAA). The NJSIAA is a voluntary, nonprofit organization which oversees interscholastic high school sports, and is comprised of approximately 440 accredited public and non-public New Jersey high schools. The NJSIAA has had a Transgender Policy since 2009 (and amended in 2017), and it states, in relevant part, “A transgender student, defined as a student whose gender identity differs from the student’s sex assigned at birth, shall be eligible to participate in accordance with either their birth sex or in accordance with their gender identity, but not both.” The NJSIAA’s Transgender Policy additionally states, “Any member school may appeal the eligibility of a transgender student on the grounds that the student’s participation in interscholastic athletics would adversely affect competition or safety.”
Following the Court’s June 30, 2026, decision, the NJSIAA issued a statement indicating it would not change its Transgender Policy. According to the NJSIAA, its Transgender Policy “provides member schools with a framework consistent with New Jersey law, while recognizing that initial eligibility determinations regarding gender are made by local school districts.”
Boards of education and charter school boards of trustees with questions about the impact of the Court’s decision on their district’s or charter schools’ sports programs should consult with their attorneys for specific legal advice and guidance.
For further information about these matters, please contact the NJSBA Legal Department at (609) 278-5279, or your board attorney for specific legal advice.
