Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
What topics do you want addressed by Judge Latwin? Tell us.
By Joe Latwin
Recognizing that women often had fewer athletic opportunities than men, Congress passed Title IX in 1972. Title IX prohibits discrimination “on the basis of sex” in federally funded educational programs. Title IX preserved sex-specific athletic teams for contact sports or where selection is “based upon competitive skill.” Congress acknowledged differences between the sexes throughout Title IX including contemplating single-sex social organizations and “maintaining separate living facilities for the different sexes”.
The language of Title IX presumes two sexes – “if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided for students of the other sex[.]”; “[T]his section shall not apply … in the case of an educational institution which has begun the process of changing from being an institution which admits only students of one sex to being an institution which admits students of both sexes[.]”
In 2021, West Virginia (and some other States) enacted laws that barred biological males from participating in contact or competitive “sports designated for females, women, or girls.” Before the law took effect, BJP – a then-11-year-old person who was born male but who identified as female, lived as a female since third grade and received puberty-delaying medication and gender affirming estrogen that allowed BJP to undergo a hormonal puberty typical of girls, with all the physiological musculoskeletal characteristics of cisgender girls and none of the testosterone-induced characteristics of cisgender boys – sued, arguing that the law’s biology-based distinction violates Title IX and the Constitution’s Equal Protection Clause. The District Court declared West Virginia’s law constitutional. BJP’s guardian appealed, seeking an injunction barring the enforcement of the West Virginia’s law pending the appeal. The Fourth Circuit Court of Appeals ruled the State must allow the petitioner to compete in girls’ sports concluding the law facially discriminates “based on gender identity” because it does not define “female” to include males who identify as female, also held the law discriminates by allowing girls to play on all teams while restricting males to boys or co-ed teams.
The Supreme Court granted the petition for certiorari and held oral argument on January 13, 2026. The audio of the hearing can be accessed at this link.
West Virginia argues the Fourth Circuit’s reasoning – that both the Constitution and Title IX compelled West Virginia to treat sex and gender identity as synonymous when it comes to sports – was erroneous, as it erases the line between men’s and women’s athletics. Sex affects athletic performance; gender identity does not. If the Circuit court was right, then Title IX’s role in preserving girls’ sports opportunities would end. Nothing in Title IX invalidates the West Virginia law. Title IX’s text forbids sex discrimination — not sex distinctions. Males identifying as female are not similarly situated to females in athletic competition. The law thus advances, rather than offends, Title IX’s requirement of equal opportunity for the two sexes. The Fourth Circuit undermined protections for female athletes and turned Title IX upside down. West Virginia’s law also satisfies the Equal Protection Clause. The Constitution does not require States to dispense with objective, biological sex distinctions. Nor does it require States to ignore inherent differences between men and women.
BJP argues that excluding BPJ from girls’ sports teams because she is a girl who is transgender is differential treatment of a “person” “on the basis of sex” under Title IX. By referring to any “person,” Title IX’s text focuses on individuals, not groups. By using the phrase “on the basis of,” Title IX’s text establishes a “but-for causation” standard. These two “key drafting choices” compel the conclusion that treating a student differently because they are transgender inherently entails differential treatment of a “person” “on the basis of sex.”
A Supreme Court decision could be issued soon, and probably no later than the end of June. Based on the law itself, and ignoring how you feel about whether the policy if good or bad (that is the bailiwick of Congress, not the Court), what do you think the result should be? No matter the Court’s decision, the problem lies at the feet of Congress. In 1972 when Title IX was enacted, it didn’t have the transgender question on its radar. If Congress meant to include transgenders under the umbrella of Title IX, it could have amended Title IX to clarify the issue. It didn’t. So, we are left with the language Congress did enact. Does sex mean gender? Does sex mean gender identity? Is transgender a sex or a gender? In any case, each person, regardless of sex or gender, should be treated with respect.
