One of the most hot button issues in education law got a lot of clarity last week. And in a surprise twist, this will not make extra work for your school. On June 30, the U.S. Supreme Court decided two cases: West Virginia v. B.P.J. and Little v. Hecox, two cases in which transgender girls sued challenging state laws that barred them from participating on sports teams designated for female athletes.
So, can states pass laws explicitly limiting participation in women’s sports to biological females?
Short answer: yes, even if a student takes puberty blockers or receives hormone treatments. States with these laws on the books (27, including NE, SD, and WY) are permitted to keep them in place. No policy changes needed.
The Court ruled that neither Title IX nor the Equal Protection Clause requires states to make exceptions for participation of transgender student-athletes. The rationale was fairly basic. Title IX has always permitted sex-segregated sports, and “sex” means biological sex, because that’s what it meant in 1972 when Title IX passed. The Equal Protection clause permits states to create sex-based classifications when they are “substantially related” to an “important” governmental objective (or in nerdy lawyer speak, “intermediate scrutiny”). According to the Court, the WV and ID laws cleared that hurdle--as would similar laws in other states.
The Court was also clear that the ruling doesn’t impact other related questions. It doesn’t impact rules in most states that permit biological females to participate on male teams. States can permit transgender participation, or at least the decision doesn’t prohibit it. The Court did not make any decision about bathrooms and locker rooms. This isn’t the end of gender-based litigation, but it does answer one long-running question. If you have any questions, let us know: ksb@ksbschoollaw.com
P.S. Speaking of Title IX — training season for 26-27 is here. On-demand training goes live July 15:
New administrators (required): Training on your district's Title IX policy, covering both "skinny" and "full" versions.
Returning administrators (recommended, not required): A quick refresher on the updated sex crimes definitions and your policy.
All staff (required only for new staff but KSB recommended for everyone): Training on your district's policy and reporting duties, also live July 15. Failing to report Title IX-covered misconduct is one of the biggest legal exposures schools have, so we recommend this for all staff every year.
Prefer in-person? We can run all of this at a back-to-school inservice — but dates are booking fast, so grab one now. Please email Shari (shari@ksbschoollaw.com).
For additional information and to register for training, CLICK HERE.
P.P.S. Do you know an attorney with a few years of experience who would be a great fit for KSB, even without specialized education law knowledge? Let that person know that we’re hiring!