Respondent B. P. J. is a transgender girl who wants to live her life consistent with her gender identity. When B. P. J. was 11 years old, she sought the opportunity to do what she and so many other children love to do: play sports. In order to do so, B. P. J. needed to turn to litigation because West Virginia has banned all transgender girls from playing in girls’ sports from middle school through college. According to the State, this ban serves the State’s important interests in ensuring safety and preventing unfair competitive advantages in girls’ sports. B. P. J., however, contends that neither of the State’s asserted justifications apply to transgender girls like her, who have never Opinion of SOTOMAYOR, J.
experienced an endogenous male puberty, who receive gender-affirming treatment, and who, as a result of both, B. P. J. says, lack any athletic advantage that is inherent to their sex identified at birth.
In the five years since the ban has been in place, B. P. J.
is the only transgender girl publicly identified in the State who has sought to play sports with other girls. Today the Court holds that neither Title IX nor the Equal Protection Clause protects B. P. J.’s ability to do so. I agree that B. P. J.’s Title IX claim fails, although on a narrower basis than that on which the majority relies. As for B. P. J.’s equal protection claim, however, the majority, at this stage of the litigation, gets the answer wrong.
Applying a form of heightened scrutiny divorced from this Court’s cases, the majority holds that transgender girls like B. P. J. who wish to play girls’ sports are not protected by the Constitution, even if B. P. J. is correct that neither of the State’s interests is furthered by their exclusion. Yet the Equal Protection Clause demands much more when a State deploys a sex classification to achieve legislative aims. Perhaps West Virginia could meet those demands. Perhaps not. In either event, because unresolved factual questions prevent the Court from assessing the merits of B. P. J.’s equal protection claim at this time, the Court should allow the District Court to address those factual questions in the first instance. Yet in an opinion unencumbered by fact or law, the majority today cuts off that process prematurely, deciding instead that B. P. J.’s case must end now.
This litigation implicates deeply sensitive, contentious, and evolving issues. These circumstances demand exercising judicial restraint, not rushing to answer conclusively difficult questions without sufficient evidentiary development. In opting otherwise, the majority extends great sympathy to those it favors: the young cisgender girls and women who play sports. I share that sympathy. Playing sports can lead to benefits that are immeasurable, and Opinion of SOTOMAYOR, J.
many are understandably invested in ensuring that competition stays fair and safe. Because the majority, however, inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions, I respectfully dissent.
I
Before addressing the complex legal issues that this case presents, it is important to understand its history and the people involved, both of which the majority unduly brushes over.1
A
In 2021, West Virginia banned all transgender girls and women from participating in school sports designated for female students. Dubbed the “Save Women’s Sports Act,” W. Va. Code Ann. §18–2–25d (Lexis 2022), the law’s “sole purpose,” and “its sole effect,” is “to prevent transgender girls from playing on girl[s’] teams.” B. P. J. v. West Virginia State Bd. of Ed., 98 F. 4th 542, 550 (CA4 2024). At the time the law was passed, as the District Court found, there was no record of any transgender person participating in school sports in the State, let alone any “‘problem’ with transgender students playing school sports and creating unfair competition or unsafe conditions.” B. P. J. v. West Virginia State Bd. of Ed., 649 F. Supp. 3d 220, 227 (SD W.
Va. 2023). West Virginia has since relied on its interests in fair competition and safety to justify the ban.
This ban replaced a policy of case-by-case assessment that had been in place since 2016. Back then, sports were also sex-separated, as they had been for decades, but transgender students could participate on teams matching their gender identity if their schools “determined that ‘fair competition’ would not be impacted by the student[s’] —————— 1Because respondent Lindsay Hecox’s case is moot, see, n. 13, infra, this dissent focuses on B. P. J.’s case.
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participation.” 98 F. 4th, at 551. An opposing school could contest a student’s participation by appealing the determination to the West Virginia Secondary Schools Athletic Commission’s board of directors. The board would then assess whether allowing the student to play “‘would adversely affect competitive equity or [the] safety of teammates or opposing players,’” considering the student’s “‘age,’” “‘athletic experience,’” “‘strength, size, and speed,’” as well as “‘the nature of the sport’” and “‘the degree to which fair competition among high school teams would be impacted.’” Ibid. (some alterations omitted).
The ban eliminated this individualized approach in favor of categorical exclusion. Now, every competitive, intramural, and club sport offered at the middle-school through college level must be “expressly designated as” either male, female, or coed, as determined by “biological sex.” §18–2– 25d(c)(1); see also §18–2–25d(b)(1) (defining “‘biological sex’” as an “individual’s physical form as a male or female based solely on the individual’s reproductive biology and genetics at birth”). Teams “designated” for “females” “shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” §18–2–25d(c)(2). Teams “designated” for “males” do not have the same restriction.
B
B. P. J. is a teenager who lives in West Virginia. Her mother describes her as “a bright and kind child who cares deeply about her family and friends and excels in school.”
10 App. 4406. B. P. J. is like many other teenagers: She is “very passionate about math and science”; her favorite videogames include Minecraft and Overwatch; and she enjoys jumping on the trampoline, running, playing with her dogs, and seeing her friends. 2 id., at 579.
B. P. J. is also transgender. Her sex was identified as male at birth, but she has known from the time that she Opinion of SOTOMAYOR, J.
was “very little” that she is a girl. Ibid. B. P. J. found support in her family after expressing how she felt and eventually began going by a different name and living consistently with her female identity at home. A little while later, she carried those changes over to all aspects of her life, including school, and school administrators and teachers worked with B. P. J. and her family to aid her social transition.
Then, when B. P. J. was around nine years old, she was diagnosed with gender dysphoria. This clinical diagnosis means that B. P. J. experiences significant and consistent distress from the fact that her sex identified at birth does not match her gender identity. Brief for American Psychological Association et al. as Amici Curiae 8–9 (APA Brief ). If left untreated, it “can cause debilitating distress, depression, impairment of function,” self-harm, and suicidality.
See id., at 10–12; 3 App. 1249. A year after her diagnosis, B. P. J. began receiving puberty-delaying treatment to prevent the onset of an endogenous male puberty. Two years after that, she began taking a form of estrogen to facilitate a typical female hormonal puberty.
When West Virginia enacted the ban, B. P. J. was nearing the end of fifth grade and preparing to enter middle school. B. P. J. was especially looking forward to joining the girls’ track team and running cross country, like many family members had before her. The middle school principal informed B. P. J.’s mother, however, that B. P. J. could not participate on either team because of the ban. This was true even though everyone who eventually tried out for the girls’ cross-country team made it, 1 id., at 456–457; 2 id., at 730, meaning that there were no “cuts,” and so this was not a “zero sum” situation, contra, ante, at 16.
A month after the ban went into effect, B. P. J. (through her mother) brought this lawsuit, arguing that the ban violates the Equal Protection Clause and Title IX. B. P. J. pursued litigation not because she could no longer “compete successfully” on male teams due to her hormonal therapy.
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Cf. ante, at 13. She did so because it would be inconsistent with her gender identity to play sports with boys. In fact, doing the latter would be quite harmful to her: Among other things, as her mother explains, it would “further isolate, stigmatize, and erase her.” 10 App. 4408; see also APA Brief 15–24 (noting the negative consequences that can follow).
The District Court granted a preliminary injunction barring the State from enforcing the ban against B. P. J., concluding that B. P. J. had shown that the ban was likely “unconstitutional as it applie[d] to her and that it violate[d] Title IX.” 1 App. 439. The State did not appeal. B. P. J.
thus began participating on her school’s girls’ track and cross-country teams.
B. P. J.’s mother reports that B. P. J. “has had the time of her life participating on these teams.” 10 id., at 4406. She has watched B. P. J. make close friends and gain a sense of belonging. Her mother recalls taking B. P. J. to practice after hours and on weekends, and often witnessing B. P. J.
practicing her form in the backyard “by herself, for hours.” Id., at 4407. Above all, her mother explains that B. P. J. “is the happiest I have ever seen her when she is accepted for who she is and able to participate in school sports.” Id., at 4408. In B. P. J.’s words, “[s]ports are an important part of [her] experience at school,” she is “so happy to . . . have the chance to participate,” she has “made so many new friends,” and she “just want[s] to have the opportunity to [play] school sports like any other girl.” 2 id., at 581.
Meanwhile, B. P. J.’s case proceeded to discovery. Because of the medical treatment that B. P. J. has received, she has never experienced a traditional male puberty and so has never experienced elevated levels of circulating testosterone. B. P. J. contends that, as a result, she does not have an inherent athletic advantage due to her sex identified at birth and, accordingly, that her participation in girls’ sports does not threaten competitive fairness or safety, Opinion of SOTOMAYOR, J.
which are the two grounds the State has relied on to justify excluding transgender girls like B. P. J. from girls’ teams. Both sides submitted expert testimony disputing this factual question.2 After discovery closed, B. P. J. and the State each moved for summary judgment and to exclude the other side’s expert.
The District Court granted the State’s motion for summary judgment on B. P. J.’s equal protection and Title IX claims without resolving the factual dispute over whether B. P. J.’s participation in girls’ sports would compromise the State’s interests in competitive fairness or safety. See 649 F. Supp. 3d, at 231 (noting, but not resolving, this “debate”). Instead, the District Court concluded that the law satisfies heightened scrutiny because it is “substantially related” to the State’s interests generally, regardless of —————— 2B. P. J.’s expert is a Fellow of the American College of Physicians and an endocrinologist at Mount Sinai. He submitted a report explaining that, “based on current research,” circulating testosterone, not “[a] person’s genetic makeup and internal and external reproductive anatomy,” is “the primary known biological cause of average differences in athletic performance” between cisgender men and cisgender women.” 4 App. 1550. He further explained that individuals who received the kind of treatment B. P. J. has received are “somewhat similarly situated to women with XY chromosomes who have complete androgen insensitivity syndrome,” ibid., meaning they have “inactive testosterone receptors” and thus do not “respond to testosterone,” id., at 1541. “[I]t has long- been recognized,” the expert continued, “that women with [that condition] have no athletic advantage.” Id., at 1550.
The State’s expert is a Professor of Exercise Science at the University of Nebraska at Kearney and received a Ph.D. in Health and Human Performance. He submitted a report explaining that inherent “advantages” in athletic performance due to an individual’s sex identified at birth have been “shown in children before puberty” and that they are “magnified during puberty . . . in large part by the higher testosterone concentrations in men, and adolescent boys, after the onset of male puberty.” 6 id., at 2124. He further explained that the administration of hormone therapy “after the onset of male puberty does not eliminate the performance advantage that men and adolescent boys have over women or adolescent girls.” Id., at 2123.
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whether the State’s interests are furthered with respect to B. P. J. specifically or to transgender girls situated similarly to her. Ibid. It then dissolved the injunction allowing B. P. J. to play sports.
B. P. J. moved in the Fourth Circuit for an injunction pending appeal, which the Circuit granted. This Court denied the State’s request to vacate that order. See 598 U. S. ___ (2023). The next year, the Fourth Circuit reversed the District Court on B. P. J.’s Title IX claim and directed it to enter summary judgment in favor of B. P. J. on remand. As to B. P. J.’s equal protection claim, the Circuit concluded that the outstanding factual dispute precluded its resolution at this stage. It thus vacated the District Court’s entry of summary judgment for West Virginia and remanded for further factfinding. 98 F. 4th, at 561–562.
II
West Virginia’s decision to separate sports teams based on an individual’s sex identified at birth is a clear sex classification subject to heightened scrutiny. West Virginia justifies the classification by citing two interests: ensuring (1) competitive athletic opportunities and (2) safety in participation for women and girls in sports. As the majority stresses and no one disputes, when it comes to sex identified at birth, males generally have an inherent athletic advantage over females in playing sports. B. P. J., however, contends that this generalization does not hold true for a discrete, easily identifiable group: transgender girls who have never experienced an endogenous male puberty, who receive gender-affirming treatment, and who are, she says, thus similarly situated to cisgender girls. For that group, she argues, neither of West Virginia’s interests is furthered by excluding them from girls’ and women’s sports.
The Court should have affirmed the Fourth Circuit’s decision to remand for further factfinding. In not taking this modest step, the majority badly errs in two ways. First, the Opinion of SOTOMAYOR, J.
majority concludes that B. P. J.’s claim fails regardless of the unresolved factual dispute over whether transgender girls are similarly situated to cisgender girls for the reasons B. P. J. gives. That is wrong. As the Court’s precedents recognize, factual disputes like this one relate to the fit of the classification and whether it survives heightened scrutiny. Second, the majority suggests that, even if relevant, the factual dispute implicates scientific uncertainty and that West Virginia’s decision is thus entitled to conclusive deference. Here, too, the majority missteps, invoking cases applying rational-basis review, citing extra-record evidence, and ignoring critical context merely because it is inconvenient.
None of this is to suggest what the eventual outcome of this litigation would have been, or even should have been, had the majority allowed the courts below to make the missing factual determinations and had those courts correctly applied heightened scrutiny with the benefit of those facts. West Virginia may well have satisfied its burden and seen its ban upheld. The point, rather, is that this Court’s equal protection precedents require a very different approach to B. P. J.’s claim than the one the majority follows today.
A
The Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Sitting “‘[a]t the heart of ’” this “‘guarantee of equal protection’” is a “‘simple command’”: “‘[T]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.’” Miller v. Johnson, 515 U. S. 900, 911 (1995) (some internal quotation marks omitted). The Clause thus bars state action that denies individuals “full citizenship stature,” or “equal opportunity to aspire, achieve, participate in and contribute to society based on their individual Opinion of SOTOMAYOR, J.
talents and capacities,” because of a class to which they happen to belong. United States v. Virginia, 518 U. S. 515, 532 (1996).
As all agree, the ban at issue classifies based on sex.
West Virginia seeks to separate sports teams based solely on an individual’s sex identified at birth. As a result, cisgender girls, whose sex identified at birth is female, can play on girls’ teams whereas transgender girls, whose sex identified at birth is male, cannot. The difference, undoubtedly, is sex.3 The key question here is whether that sex separation is constitutionally justified. Sex classifications like this one cannot be deployed unless they survive “heightened scrutiny.” J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136 (1994) (explaining that this level of scrutiny is “warrant[ed]” due to “‘our [Nation’s] long and unfortunate history of sex discrimination’”). To survive this inquiry, the State must provide an “‘exceedingly persuasive justification’” for letting the sex classification stand. Virginia, 518 U. S., at 546. This means that the State must show “‘at —————— 3The ban may also be subject to heightened scrutiny under Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 (1979). To start, transgender status, as I argued in United States v. Skrmetti, 605 U. S. 495 (2025), is a quasi-suspect classification. Id., at 600–603 (dissenting opinion). “Transgender people have long been subject to discrimination in healthcare, employment, and housing, and to rampant harassment and physical violence.” Id., at 601; see also id., at 601–602 (collecting examples). They also “have a defining characteristic (incongruence between sex and gender identity) that plainly ‘bears no relation to [the individual’s] ability to perform or contribute to society.’” Id., at 602. This quasi-suspect class is no less a “‘discrete subgroup’” than others this Court has recognized. Contra, ante, at 1 (THOMAS, J., concurring); see Skrmetti, 605 U. S., at 602 (dissenting opinion). From here, the ban may have been enacted “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon” transgender girls and women. Feeney, 442 U. S., at 279. Because B. P. J.’s equal protection claim survives summary judgment based on the sex classification alone, however, there is no need to reach these issues.
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least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’” Id., at 535 (alteration in original; some internal quotation marks omitted). At its core, this inquiry works to distinguish laws based on “overbroad generalizations about the different talents, capacities, or preferences of males and females” from laws based on legitimate state interests, which reflect genuine, “‘inherent differences’” between “men and women” that make them differently situated. Ibid. Before this Court, West Virginia argues that its sex classification substantially furthers its important interests in ensuring competitive fairness and safety in girls’ and women’s sports. As the State conceded below, however, it has no interest “in protecting one girl’s ranking in any competition or ‘in ensuring that cisgender girls do not lose ever to transgender girls.’” 98 F. 4th, at 560. Rather, the focus is on when the participation of transgender girls is actually unfair or unsafe for others. Ibid. Understood in that way, B. P. J. does not dispute the importance of either interest here.4 —————— 4The majority, for its part, adds a third interest: “provid[ing] opportunities for biological women and girls to compete only against other biological women and girls.” Ante, at 16. That misrepresents West Virginia’s stated legislative interest. Its law seeks “to promote equal athletic opportunities for the female sex,” defined as “biological females.” W. Va. Code Ann. §§18–2–25d(a)(5), (b)(2). Promoting such equal opportunity certainly encompasses ensuring competitive fairness and safety, as West Virginia has argued throughout this litigation. See Brief for Petitioners in No. 24–43, pp. 17, 39, 44; Reply Brief for Petitioners in No. 24–43, pp. 13, 22; see also 98 F. 4th, at 559 (noting that, in the Fourth Circuit, the State had “disclaim[ed] reliance on any other potential interests” besides “participant safety and competitive fairness”). Whether competition “only against other biological women and girls,” ante, at 16, Opinion of SOTOMAYOR, J.
As the majority further identifies, no one disputes that sorting based on sex identified at birth, as a means to achieve West Virginia’s asserted interests, will further those interests in most situations. See ante, at 17. That is because, as the majority explains and B. P. J. does not contest, there are inherent physical differences between males and females, as defined by sex identified at birth, making them differently situated generally when it comes to many sports. Ibid.; see Virginia, 518 U. S., at 533.
Even so, B. P. J. contends that the means deployed by West Virginia here, a total ban on participation, lack the right fit. She argues that the chosen classification bars a discrete subclass from participating in girls’ and women’s sports even though the State’s interests will not be furthered by their exclusion.
According to B. P. J., transgender girls and women who both receive gender-affirming treatment and have never experienced endogenous male puberty neither possess any inherent athletic advantage nor pose any safety risks because of their sex identified at birth. As B. P. J. tells it, this distinct subclass is thus similarly situated to cisgender girls and women and yet is still being excluded. It is this overbreadth, she argues, that leads to the equal protection violation.
Under this Court’s precedents, this asserted factual difference, which has not been conclusively litigated below, matters to the equal protection analysis.
a This Court has held that a sex classification violates equal protection when there is an incongruity between the —————— is substantially related to promoting equal opportunity, however, is the very question posed by this case, not a separate legislative interest West Virginia has sought to pursue. In applying heightened scrutiny, moreover, it is a reviewing Court’s duty to “determine whether the [State’s] proffered justification” behind a sex classification “is ‘exceedingly persuasive,’” United States v. Virginia, 518 U. S. 515, 533 (1996), not to drum up circular justifications on the State’s behalf.
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sex classification in general and its application to a discrete subclass. For instance, in Caban v. Mohammed, 441 U. S. 380 (1979), this Court reviewed a New York law that gave an unwed mother, but not an unwed father, complete veto authority over the adoption of her child by requiring her consent. Id., at 385–387. The State justified that different treatment by invoking the notion that “‘a natural mother, absent special circumstances, bears a closer relationship with her child . . . than a father does.’” Id., at 388. The State also said that it was easier to locate unwed mothers than unwed fathers, as the former were “more likely to remain with their children.” Id., at 392.
The plaintiff Caban, though, did not fit the justification underlying the State’s classification: He was an unwed father who had “a relationship with his children fully comparable to that of the mother,” so the application of the classification to him did not further the State’s interests. Id., at 389. Confronted with this difference, the Court held that “[i]n those cases where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection Clause preclude[d] the State from withholding from him the privilege of vetoing the adoption of that child.” Id., at 392. When, however, “the father has established a substantial relationship” with the child, the State had failed to show that the use of sex bore “a substantial relationship to” the State’s justifications. Id., at 393. As a result, the Court held, the law as applied to fathers like Caban was the kind of “‘overbroad generalizatio[n]’ in gender-based classifications” that the Equal Protection Clause forbids. Id., at 394.
A few years later, the Court addressed an equal protection challenge against the same New York law, this time by Lehr, an unwed father who had “never established any custodial, personal, or financial relationship” with his daughter. Lehr v. Robertson, 463 U. S. 248, 267 (1983). This time the claim failed: Because Lehr was “not like the [father] Opinion of SOTOMAYOR, J.
involved in Caban,” the Court said, “the Equal Protection Clause d[id] not prevent a State” from treating Lehr’s “class” of unwed fathers differently. Id., at 267–268.
Taken together, the Court in Caban and Lehr dealt with the sex classification’s overbreadth by allowing the State to use the classification when doing so actually furthered its interests (Lehr), but not when it did not (Caban). Similarly here, B. P. J. contends that even if the use of the sex classification substantially furthers the State’s interests when it prevents cisgender boys from playing on girls’ teams, it does not substantially further the State’s interests when it prevents transgender girls who have never experienced an endogenous puberty and who receive gender-affirming treatment from doing the same. As in Caban and Lehr, it matters if she is right.
The Court has closely scrutinized differences like this in others cases too. In United States v. Virginia, 518 U. S. 515, for example, the Court addressed the lawfulness of the Virginia Military Institute’s (VMI’s) male-only admissions policy. The Court held that Virginia could not “constitutionally deny to women who have the will and capacit[y] the . . . opportunities that VMI uniquely affords,” even if “most women” did not have that “will and capacity.” Id., at 542.
Virginia had justified the exclusion of all women by citing its “goal of producing citizen-soldiers” and its “implementing methodology” (a harsh and rigorous “‘adversative method’” of instruction). Id., at 520. Prohibiting women from the school on these bases, however, rested on a “[g]eneralizatio[n] about ‘the way women are’” and was at best an “estimat[e] of what is appropriate for most women.” Id., at 550. Under this Court’s cases, the Court held, such classifications could “no longer justify denying opportunity to women whose talent and capacity place them outside the average description.” Ibid. That was because neither of the Commonwealth’s interests were “‘inherently unsuitable to women,’” and at least a subclass of women could “‘do well Opinion of SOTOMAYOR, J.
under [the] adversative model,’” “‘would want to attend [VMI] if they had the opportunity,’” were “‘capable of all of the individual activities required by VMI cadets,’” and could “‘meet the physical standards” VMI “impose[d] on men.’” Ibid. In other words, even though the sex classification at issue did further Virginia’s interest in general and in most cases, it did not further those interests at all for a subclass of women. It was “on behalf of th[ose] women,” even if they were a small minority of all women, for which the Court held that a “remedy must be crafted.” Ibid. Here again, B. P. J. is making a similar claim. Even though, she says, West Virginia’s classification may substantially further the State’s interests in most applications, as was the case for most of the women who did not want to and could not attend VMI, the State’s interests are not substantially furthered as applied to her subclass, as was the case for “some women” who did want to and could attend VMI. The Court’s holding in Virginia thus shows that unresolved factual differences matter, even if the classes of people to whom they might be relevant are themselves small.
b Whether the fit between the means and the State’s interest is “‘exceedingly persuasive,’” id., at 533, also depends on the nature of the burdens imposed. The Court’s decision in Tuan Anh Nguyen v. INS, 533 U. S. 53 (2001), provides a helpful illustration. That case concerned a statute that classified based on sex: It allowed citizen mothers, but not citizen fathers, married to noncitizens to transmit U. S. citizenship at birth to their children born abroad. Id., at 56– 57. This Court upheld the differential treatment, concluding that it furthered the interest of ensuring a substantial “parent-child relationship” with a U. S. citizen before bestowing citizenship, given that mothers, by virtue of giving birth, had the potential for such a relationship and indeed Opinion of SOTOMAYOR, J.
likely had one. Id., at 68–69. For citizen fathers, by contrast, the knowledge of parenthood was not guaranteed “at the moment of birth.” Id., at 68.
Some citizen fathers, of course, had knowledge of parenthood from the moment of their child’s birth. In this way, the classification did not fit them. Congress had accounted for those situations, however, by allowing fathers to take one of three “simple” procedural steps to secure citizenship for their children. Id., at 71; see id., at 63 (listing those steps as “legitimation, paternity oath, and court order of paternity”). As the Court explained, it was “mindful” of “the obligation” that the classification “impose[d]” on “a citizen father,” but it recognized that the burden was “minimal” and that “Congress ha[d] not erected inordinate and unnecessary hurdles” for a father to gain the same benefit for his children as a mother to whom he was similarly situated. Id., at 70–71. It was in that context that the Court upheld the sex classification, even though Congress’s “ultimate objective” was not achieved in every application of it. Id., at 70.
In stark contrast, Caban, Virginia, and other cases like them show that classifications can violate the Equal Protection Clause if they take the “extrem[e]” approach “of complete exclusion” even if allowing exceptions for “significant categories” (i.e., subclasses) within a given classification would not “jeopardiz[e]” the State’s interests. Cf. Trimble v. Gordon, 430 U. S. 762, 771 (1977). In Nguyen, the law allowed for such exceptions and so passed muster. In Trimble, to the contrary, the Court found an equal protection violation as to a law restricting inheritances by “illegitimate children” from their fathers’ estates because the State “unnecessarily” refused to grant exceptions for “categories” of such children as to whom “inheritance rights” could be recognized without undermining the State’s interests. 430 Opinion of SOTOMAYOR, J.
U. S., at 771.5 What is more, in Sessions v. Morales-Santana, 582 U. S. 47 (2017), the Court distinguished Nguyen, at least in part, when the burden imposed by the process for seeking an exception “cannot fairly be described as ‘minimal.’” 582 U. S., at 66, see also id., at 62–72 (holding unconstitutional requirements that unwed citizen fathers be physically present in the United States for up to 10 years before they could bestow citizenship to their children born abroad while imposing only a 1-year requirement on unwed citizen mothers).
All these cases help explain what it means for the “fit between the means and the important end [to be] ‘exceedingly persuasive,’” Nguyen, 533 U. S., at 70, and they demonstrate that the existence of readily identifiable, discrete subclasses that do not fit a classification’s generalization can factor into that analysis. If a State includes a discrete subclass in an overbroad classification when exempting them would not unnecessarily jeopardize the government interest the State wishes to further, that can show that the State’s choice to use the classification is not actually in service of those interests, but rests on discriminatory generalizations instead.6 —————— 5 Trimble concerned a classification based on “illegitimacy,” which this Court has since clarified is also subject to heightened scrutiny. See Clark v. Jeter, 486 U. S. 456, 461 (1988).
6To be clear, this analysis has never been about whether an interest is furthered as to an individual person based on their unique personal circumstances. Rather, it has always focused on readily identifiable, discrete subclasses. West Virginia warns that such a theory of equal protection would lead to litigants defining classifications smaller and smaller to the point that the State will be left granting exception after exception in search of a perfect fit. Brief for Petitioners in No. 24–43, at 43–44. Not so. States can justify schemes that lack exceptions for some or all by demonstrating that they did not deny those exceptions “unnecessarily.” E.g., Trimble, 430 U. S., at 771. That could be so when, as explained, an exception would “jeopardiz[e]” a State’s interest, ibid., or when “more accurate and impartial lines [cannot] be drawn,” MoralesOpinion of SOTOMAYOR, J.
Here, B. P. J. argues that the State’s sex classification fails heightened scrutiny not only because it does not fit her subclass, but also because it operates as a categorical exclusion, much like the classifications in Caban, Virginia, and Trimble. Here, unlike in Nguyen, there are no procedures for her to follow to prove that she is similarly situated to cisgender girls and thus able to participate on the girls’ team. Because this Court’s equal protection analysis of sex classifications has generally considered whether the classification fits discrete subclasses and the extent to which subclasses are burdened, it matters if B. P. J. is right about the purported problems she identifies. At this stage, the Court therefore needs additional facts to assess whether B. P. J.
is in fact correct, and whether, as a result, the State has “unnecessarily” refused her an exception.7 —————— Santana, 582 U. S., at 63, n. 13. In addition, while a State generally cannot rely on “mere” “administrative convenience” to justify the use of a sex classification, Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142, 152 (1980), the Court has recognized that “[i]t may be that there are levels of administrative [in]convenience,” ibid., that could perhaps support a showing that the State has not denied an exception “unnecessarily and overbroadly,” Morales-Santana, 582 U. S., at 63, n. 13. Whether any of these justifications hold true here depends on factual findings that have not been made and, because of the Court’s decision today, never will be. 7In contesting whether these facts matter in the equal protection analysis, the parties at points discuss whether a challenge like B. P. J.’s should be characterized as “ ‘as applied’ ” or “ ‘facial.’ ” As B. P. J. argues, in most cases, such as here, this debate is largely one of “semantics.” Brief for Respondent in No. 24–43, p. 46. It is true that some equal protection challenges, if successful, may mean that a given classification is impermissible in all applications and therefore resemble what this Court has called a “facial” challenge. That may be so, for instance, when the legislature has not identified an important or legitimate governmental interest. See, e.g., Romer v. Evans, 517 U. S. 620 (1996). In other challenges, though, the equal protection problem is not with the classification as such, but rather with its overbreadth or the way the classification’s lines have been drawn. As a result, the classification may constitutionally be applied to some individuals, see, e.g., Lehr v. Robertson, 463 U. S. Opinion of SOTOMAYOR, J.
The majority offers several reasons for concluding that the alleged inaccuracy that B. P. J. identifies does not matter at all and that further factual development is therefore unnecessary. To the majority, the fit here is simply good enough. In so concluding, the Court elevates the reasoning of earlier dissents and lowers the State’s burden for justifying the use of sex classifications in potentially all cases. Cf. Cisco Systems, Inc. v. Doe, 609 U. S. ___, ___ (2026) (SOTOMAYOR, J., dissenting) (slip op., at 23) (“‘When proponents of [previously rejected] arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent’”).
a The majority’s analysis starts, and largely ends, with a single premise. As the majority tells it, because the important governmental interests behind laws subject to heightened scrutiny need to be furthered only in most (and not all) applications of a given classification, the fact that B. P. J. has identified some applications in which the State’s interests may not be furthered does not and cannot give rise to an equal protection violation. See ante, at 18– 22.8 The majority acts as if the Court is having this debate —————— 248, 267 (1983), but not others, see, e.g., Caban v. Mohammed, 441 U. S 380, 393 (1979). In those circumstances, where narrowing the classification itself could arguably remedy the equal protection problem, the challenge looks more “as applied.” However labeled, the purpose and effect of all such challenges is to identify overbroad generalizations and to eliminate them to the extent of the constitutional violation. That is all B. P. J. seeks to do here.
8For support, the majority relies on Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (1976) (per curiam), which it quotes for the idea that “ ‘[p]erfection in making the necessary classifications is neither possible nor necessary.’ ” Ante, at 18. This quote comes from Murgia’s application of the “relatively relaxed” “rational-basis standard.” 427 U. S., Opinion of SOTOMAYOR, J.
for the first time or that B. P. J. is asking for something new here. It is not, and she is not.
To begin, the Court in neither Caban nor Virginia imposed this limitation. In fact, similar arguments were raised by the dissents in each.
Today, for example, the majority states that a plaintiff must identify “an especially large subclass” in which the State’s asserted interest is not furthered before a court can find a classification’s fit lacking or grant relief of any kind. Ante, at 21. You would not know it from reading the majority’s opinion, but Justice Stevens made the same argument dissenting in Caban.
He observed that the Court had wrongly found an equal protection violation because the State’s “justification [was] not as strong for some indeterminately small part of the disadvantaged class as it [was] for the class as a whole” and so was invalid “as it applie[d] to that subclass.” 441 U. S., at 409. That was wrong, Justice Stevens said, because Caban had not “demonstrate[d] that its unjust applications are sufficiently numerous and serious to render it invalid.” Id., at 410. To Justice Stevens, given that Caban had shown that the classification’s unfairness “extend[ed] only to himself and by implication to [an] unknown number of fathers just like him,” Caban had not —————— at 314. The majority also invokes Skrmetti, 605 U. S. 495, for a similar purpose, but that case also applied rational-basis review. Id., at 522. From here, the majority abandons the Court’s equal protection precedents entirely, instead citing First Amendment cases applying distinct forms of intermediate scrutiny to regulations of commercial speech and time, place, and manner speech restrictions. See United States v. Edge Broadcasting Co., 509 U. S. 418, 429–430 (1993) (requiring only a “reasonable” fit); see also Ward v. Rock Against Racism, 491 U. S. 781, 801 (1989). In any event, even under these more relaxed standards, a speech restriction cannot “burden substantially more speech than necessary to further the government’s” interests. Edge, 509 U. S., at 430. As analogized to this context, the State seemingly would fail that standard if it unnecessarily declines an exception for a readily identifiable subclass, when doing so does nothing to further its interests.
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provided “sufficient reason” for “invalidating the entire rule” or for “concluding that the application of a valid rule” violated “equal protection principles.” Id., at 410–412. The Court rejected this argument then. Today, the majority reprises it without even providing attribution to Justice Stevens (or anyone at all). See ante, at 19–22.
The solo dissent in Virginia raised similar objections to the Court’s application of heightened scrutiny. In Justice Scalia’s view, the majority in Virginia necessarily concluded that “VMI’s single-sex composition [was] unconstitutional because there exist[ed] several women (or, one would have to conclude under the Court’s reasoning, a single woman) willing and able to undertake VMI’s program.”
518 U. S., at 573. The dissent added, as the majority repeats here, that “[t]here is simply no support in our cases for the notion that a sex-based classification is invalid unless it relates to characteristics that hold true in every instance.” Id., at 574; see ante, at 18–19 (pressing this exact argument). Once again, where these arguments failed before, today they succeed.
Nor is the majority’s analysis today persuasive on its own terms. Although it is true that sex classifications can be upheld even when they are not accurate in all applications, as was the case in Nguyen, that bare statement does not speak of what to do when confronted with differences within a class of people who are subject to a sex-based classification. Contra, ante, at 21, n. 5. It does not answer whether the State has “unnecessarily” denied exceptions for readily identifiable “categories” in which the classification did not fit. Trimble, 430 U. S., at 771. It does not answer whether any exceptions exist and if so, what the burdens associated with them are like. All told, it is inconsistent with intermediate scrutiny to dismiss out of hand the existence of classification errors that may show the State has in fact rested on exactly the kind of overbroad generalizations based on sex the Equal Protection Clause is supposed to root out.
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The majority wrongly dismisses the alleged overbreadth in this case because, in its view, the subclass at issue is not large enough to matter. “[T]he avoidance of gratuitous sex- based distinctions,” however, “is the hallmark of equal protection.” Nguyen, 533 U. S., at 82 (O’Connor, J., dissenting). Unjustified sex-based discrimination inflicts “injury . . . to personal dignity” regardless of the number of individuals affected. J. E. B., 511 U. S., at 153 (Kennedy, J., concurring in judgment). Allowing the State to classify groups of people based on a protected characteristic even though its interests are not substantially furthered by doing so is plainly inconsistent with the constitutional “‘command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.’” Miller, 515 U. S., at 911 (some internal quotation marks omitted). This Court has thus never required a plaintiff to demonstrate that a subclass is of some significant size before holding that the use of a sex classification violates principles of equal protection. Contra, ante, at 20– 21. Indeed, “virtually every” sex classification that this Court struck down in the last quarter of the 20th century was “overwhelmingly, though not perfectly, accurate.” M.
Case, “The Very Stereotype the Law Condemns”: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1450 (2000).
It is especially problematic to change course here. Recall that for nearly five years before the State enacted this ban, it had allowed transgender girls to participate in girls’ sports in certain circumstances. See supra, at 3–4. Before that, sex-separated sports teams had existed for decades.
The ban’s entire purpose, and its entire effect, therefore was to eliminate the possibility of allowing any exception based on the legislature’s fears, thus far not conclusively litigated, that transgender student-athletes categorically posed dangers to competitive fairness and safety in all girls’ and women’s sports.
To the legislature, this move was Opinion of SOTOMAYOR, J.
necessary, as the Act’s title suggests, to “Save Women’s Sports.” 98 F. 4th, at 550; see also Brief for Petitioners in No. 24–23, pp. 2–3 (expressing a similar sentiment).
B. P. J. sued, contending that the State’s decision, which will use her sex identified at birth to deny her an opportunity, was based on a faulty premise and that transgender girls who have never experienced an endogenous male puberty and who receive gender-affirming treatment do not pose any threat to competitive fairness or safety. Yet the majority says that even if B. P. J. could prove West Virginia wrong, the Equal Protection Clause would have nothing to say about it.
The majority’s position is thus fundamentally inconsistent. It credits the West Virginia Legislature’s concern that a class consisting of transgender girls like B. P. J. is large enough to pose an existential threat to girls’ sports, but at the same time holds that this class is too small to be protected by the Equal Protection Clause. In other words, this potentially overbroad generalization is both necessary to furthering substantially the State’s interests in girls’ sports and effectively irrelevant to assessing the classification’s lawfulness. The Court’s equal protection precedents neither require nor support this contorted logic.9 —————— 9The majority asks whether exemptions would be required for cisgender men who, because of their physical characteristics, do not pose either safety concerns or threaten competitive fairness in girls’ and women’s sports. See ante, at 22. The Equal Protection Clause does not require such exemptions, at least on the State’s two stated interests here. That is because the State’s interest in “fairness” is geared toward eliminating the athletic advantage inherent to sex identified at birth, not toward eliminating all athletic advantages in general. A cisgender boy’s equal protection claim thus would fail because even if he is, for example, shorter than the average girl, he still possesses the same athletic advantage that is inherent to his sex identified at birth as any other cisgender boy. The majority misunderstands this distinction by confusing general “physical capabilities,” like size and strength, with biological, athletic advantages that stem from sex identified at birth. Ante, at 19– 20, n. 4.
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b Next, the majority contends that B. P. J.’s claim collapses intermediate scrutiny and strict scrutiny. Ante, at 21. It does not.
First, and most obviously, strict scrutiny calls for a “‘compelling government interes[t],’” Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 207 (2023), not an “‘important’” one, Virginia, 518 U. S., at 533. Many laws subject to strict scrutiny fail on this ground alone. See, e.g., Louisiana v. Callais, 608 U. S. ___, ___ (2026) (slip op., at 35); Loving v. Virginia, 388 U. S. 1, 11 (1967); Vitolo v. Guzman, 999 F. 3d 353, 360 (CA6 2021); Rothe Development Corp. v. Department of Defense, 545 F. 3d 1023, 1049 (CA Fed. 2008); see also Students for Fair Admissions, 600 U. S., at 207 (recounting the short list of interests that have satisfied this showing).
Second, under strict scrutiny, States can use a classification such as race only if it proves that the “use of race is ‘narrowly tailored’—meaning ‘necessary’—to achieving that interest.” Id., at 207. The Court has interpreted that mandate to mean that if a State can achieve the same interest through other means, even if using race would allow it to achieve that interest in some (or even most) circumstances more effectively or with less expense, the State still cannot use race at all. See, e.g., Fisher v. University of Tex. at Austin, 570 U. S. 297, 312 (2013).
Intermediate scrutiny, by contrast, allows States to use a classification when it furthers its interests in most applications, even if not all applications. The State can then put the onus on the individual to come forward, as B. P. J. must here, and prove that she does not fit the generalization behind the classification and is in fact similarly situated to the class of people she is being treated differently from, so long as the burdens are not themselves too demanding, see Morales-Santana, 582 U. S., at 66. The State, moreover, can also prove that it did not deny a given exception Opinion of SOTOMAYOR, J.
“unnecessarily” because allowing an exception would jeopardize the very interests the State is attempting to further or come at too high of an administrative cost. See n. 6, supra. These are attributes of intermediate scrutiny alone.
B
Stepping back from contending that the factual dispute does not matter at all, the majority suggests that even if it were relevant, B. P. J. could not prevail. That is because, the majority says, there is an ongoing scientific debate over whether transgender girls who have not experienced an endogenous male puberty and who receive gender-affirming treatment possess an athletic advantage inherent to cisgender men. In the majority’s view, the Court should be “cautious about swooping in and invalidating laws” that implicate such uncertainty and should instead defer to the legislature’s “considered policy judgments.” Ante, at 24–25. Of course, even when applying heightened scrutiny, courts should give deference to what legislatures and experts have to say when dealing with scientific issues. Even so, the deference afforded is not conclusive. Nor does the mere existence of scientific debate end the matter.
In proceeding differently, the majority again cites the wrong standard, primarily relying on cases that applied rational-basis review, not heightened scrutiny. See, e.g., ante, at 24–26 (quoting United States v. Skrmetti, 605 U. S. 495, 525 (2025); Marshall v. United States, 414 U. S. 417, 427 (1974)). Indeed, the majority recites arguments on this score that are identical to the ones it embraced in Skrmetti, when it applied rational-basis review to uphold the law at issue there. Compare ante, at 24–26, with 605 U. S., at 524 (outlining the level of caution and deference courts must Opinion of SOTOMAYOR, J.
exercise when wading into areas of “‘medical and scientific’” uncertainty in that context).10 The two tests are not the same. Courts will uphold legislation subject to rational-basis review so long as there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993). Heightened scrutiny, by contrast, requires courts to “closely scrutinize legislative choices” to ensure that the use of the classification satisfies the required means-ends fit.
Cleburne v.
Cleburne Living Center, Inc., 473 U. S. 432, 441 (1985); see also Skrmetti, 605 U. S., at 552–553 (BARRETT, J., concurring) (drawing this distinction); id., at 528–529 (THOMAS, J., concurring) (same). In Virginia, for instance, the Commonwealth had cited a “substantial body of contemporary scholarship and research,” 518 U. S., at 576 (Scalia, J., dissenting), to support its assertions that it need not allow women to attend because women thrive in a “‘cooperative atmosphere,’” and not in the “atmosphere of adversativeness” that men “‘tend to need,’” id., at 541 (majority opinion). The Court did not thoughtlessly defer to Virginia’s judgments about that research. Rather, it held that when presented with “generalizations or ‘tendencies’ of the kind pressed by Virginia,” “reviewing courts” must “take a ‘hard look’” to ensure that they do not perpetuate “overbroad ‘generalizations’” and “‘fixed notions concerning the roles and abilities of males and females.’” Id., at 541–546.
—————— 10The majority here also invokes Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997). See ante, at 25. In Turner, the Court, in applying a distinct form of intermediate scrutiny in the First Amendment context, described how to assess the constitutionality of laws that involved legislative “predictive judgments.” 520 U. S., at 195–196. Even assuming that standard is relevant in this context, courts would still need to evaluate whether the legislature has “‘drawn reasonable inferences based on substantial evidence.’” Id., at 195. This is an analysis the District Court should have conducted for all the reasons explained in the text.
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The majority’s analysis looks nothing like the judicial check necessary under heightened scrutiny. For example, the majority says that the science “is not settled in [B. P. J.’s] direction at this time.” Ante, at 24. For support, it cites a study published after oral argument in this case. Ibid. It should go without saying that that study is not in the record before the Court.11 From here, the majority points to how various athletic organizations, like the National Collegiate Athletic Association and the United States Olympic & Paralympic Committee, have adopted policies consistent with West Virginia’s ban. Ante, at 25. Yet the majority ignores that those two organizations did so after the President issued Executive Order No. 14201, which threatened to take away federal funding from any educational program that allowed transgender girls and women to participate on girls’ and women’s sports teams, as —————— 11Earlier in its opinion, the majority recounts a legislative finding for Idaho’s ban, which, it says, “found” that “the benefit ‘that natural testosterone provides’” remains after transgender girls take “‘puberty blockers and cross-sex hormones.’” See ante, at 7 (citing Idaho Code Ann. §33– 6202(11) (2025)). That legislative finding cited a study “in support of this proposition” that “was later altered after peer review, and the conclusions the legislature [had] relied upon were removed.” 479 F. Supp. 3d 930, 981, and n. 37 (Idaho 2020) (case below). Indeed, that study “did not involve transgender athletes at all.” Id., at 981. The majority also recounts other Idaho legislative findings, see ante, at 7, some of which cited conclusions from a different study to support the idea that transgender girls retain an advantage over cisgender girls, see §§33– 6202(5), (10). That study’s author later asked the Governor of Idaho to veto the law, explaining that the legislative findings had misrepresented her work. See 479 F. Supp. 3d, at 981. These are exactly the kinds of record-intensive issues that trial courts can and should consider in the first instance when applying heightened scrutiny; they also illustrate the risks posed by giving a legislature what is effectively conclusive deference when evaluating constitutional claims against the backdrop of scientific uncertainty.
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defined by sex identified at birth.
90 Fed. Reg. 9279 (2025).12 Whether these changes to their prior policies were driven by politics, science, or both is not something that the Court can resolve in the current posture of this case.
To be clear, B. P. J. ultimately may not be able to show that the science is sufficiently on her side; this dissent takes no position one way or another on B. P. J.’s odds of success. In other words, West Virginia might be right that transgender girls retain some inherent athletic advantage over cisgender girls due to their sex identified at birth even after receiving the hormonal therapy B. P. J. identifies. All agree, moreover, that States do have some room to legislate around issues when there exists significant, and genuine, scientific debate. At this point, however, neither the District Court nor the Fourth Circuit has passed upon any of the available evidence or made the necessary factual findings about the state of the scientific debate. Given the lack of factual development, it is the majority that should heed its own word and be “cautious about swooping in,” ante, at 24, rather than resolving this kind of factual dispute in the first instance and in this slapdash manner. A restrained approach, based on all relevant facts, is particularly necessary when the Court is faced with a consequential decision of constitutional dimension.
—————— 12See NCAA Announces Transgender Student-Athlete Participation Change (Feb. 6, 2025), https://www.ncaa.org/news/2025/2/6/media-center-ncaa-announces-transgender-student-athlete-participation-policychange.aspx (archived at https://perma.cc/G9BF-HQ4R?type=image) (explaining that the Board of Governors voted to change its policy “following the Trump administration’s executive order”); S. Starcevic, Politico, U. S. Olympic Committee Bans Transgender Athletes After Trump Order (July 22, 2025), https://www.politico.com/news/2025/07/22/u-s-olympiccommittee-transgender-00468845 (archived at https://perma.cc/QP2VR9A7) (similar).
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* * * In sum, an outstanding factual dispute should have prevented the Court’s resolution of B. P. J.’s claim. Far from being wholly irrelevant, that factual dispute is potentially outcome determinative. In concluding otherwise, the majority adopts the position that the Equal Protection Clause allows state actors to deploy sex classifications that impose significant burdens on subclasses within them, even when the State’s interests are not furthered by their inclusion and even when those interests would not be jeopardized by exempting them. Attempting to minimize this outcome, as well as the sharp break between the Court’s opinion today and its prior cases, the majority ends by contending that its “holding” is “straightforward.” Ante, at 26. Its holding may be straightforward, but that is not the point. The problem is how the majority gets there: by moving the goalposts set by precedent and by resolving this important, divisive issue without knowing all the facts even though the validity of the means-ends fit depends on them.
The majority applies its diminished view of equal protection to the sports context today, relying on the parties’ concessions that the State’s asserted interests will be furthered in most applications, given the particularly close relationship between sex, sports, and those interests. One can only hope that the same misguided approach does not and will not extend to other contexts tomorrow, when any of these considerations are missing.13 —————— 13As the majority recognizes, respondent Lindsay Hecox also asserted an equal protection challenge, hers against a like ban enacted by Idaho. It errs by resolving rather than dismissing her case as moot. Hecox is a transgender college student nearing graduation. See Tr. of Oral Arg. in No. 24–38, pp. 118–119. The majority decides her equal protection challenge even though Hecox has sworn that she has stopped playing, and will never again play, any sport covered by the ban; even though Hecox agrees that the decision below in her favor should be vacated under Opinion of SOTOMAYOR, J.
III
In addition to contending that the State’s ban violates the Equal Protection Clause, B. P. J. argues that it also violates Title IX. I agree with the majority that it does not.
To start, as the majority observes, see ante, at 10, B. P. J. does not dispute that, for the purposes of this case, “sex” in Title IX means “biological sex,” or sex identified at birth. See 20 U. S. C. §1681. Nor does she dispute that “sex” is used in the same way in the 1974 Javits Amendment, §844, 88 Stat. 612, and its accompanying regulations, which expressly authorize, but do not require, sex-separated sports —————— United States v. Munsingwear, Inc., 340 U. S. 36, 39–40 (1950); even though Hecox could not change her mind, switch positions, and challenge the ban in the future, Brief for Respondent in 24–38, p. 17; and even though the same issues that are presented in her case are presented in B. P. J.’s case, which means the Court can decide them fully without her redundant participation. These circumstances make her case unlike Erie v. Pap’s A. M., 529 U. S. 277, 287–289 (2000) (case not moot when, despite ceasing operations, the respondent made no representations about its future intentions and “could again decide to operate” a similar business), and more like cases this Court has dismissed as moot, see Deakins v. Monaghan, 484 U. S. 193, 199–201 (1988) (relying on respondents’ “state[ment] that they no longer seek [the relevant] relief in federal court” in concluding that “there no longer is a live controversy” as to that relief ); see also, e.g., Acheson Hotels, LLC v. Laufer, 601 U. S. 1, 5 (2023) (dismissing as moot based in part on respondent’s dismissal of her suit and representation “that she w[ould] not file any others”).
The majority nonetheless worries that dismissing Hecox as moot could risk “‘insulat[ing] a decision from review’” and rewarding “post-certiorari” gamesmanship. Ante, at 14, n. 3. Yet no evasion of review was ever possible here because identical issues are pending before (and have now been resolved by) the Court. Indeed, despite reaching out to resolve both cases on the merits, see ante, at 14, n. 3, 29, nothing in the majority’s analysis appears to depend on anything specific to Idaho’s law or the record in Hecox. The majority thus accomplishes nothing by stretching the bounds of Article III to decide this moot case, other than needlessly and gratuitously prolonging the ordeal of “harassment” and “negative public scrutiny” that Hecox experienced litigating this case and has sought to escape by dropping it. App. to Suggestion of Mootness in No. 24–38, p. 2a.
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teams, 34 CFR §106.41(b) (2025). Finally, she does not seriously dispute that those regulations are lawful. It follows from all this that, even though West Virginia’s policy of separating sports teams by sex identified at birth draws a sex distinction, it is one that Title IX allows.14 In support of her claim, B. P. J. invokes this Court’s decision in Bostock v. Clayton County, 590 U. S. 644 (2020). See ante, at 13. In Bostock, the Court construed Title VII and reached the simple but consequential conclusion that when a person’s transgender status is a but-for cause of an employment decision, sex ineluctably is also a but-for cause of that decision. 590 U. S., at 662. It is “impossible,” the Court explained, to draw a transgender-based distinction without also drawing a sex-based distinction. Id., at 660.
Further, because Title VII prohibits sex-based discrimination in the workplace, Bostock held, it also prohibits transgender discrimination in that context. Ibid. The majority is correct that Bostock does not require finding a Title IX violation in this specific context. See ante, at 13–14 (limiting discussion of this issue to “the sports context” and holding that Bostock is “not relevant” to that specific “statutory and factual context”). That is because drawing this distinction based on sex, in the form of creating sex- separated sports teams, is not unlawful under Title IX through the Javits Amendment and its accompanying regulations, given B. P. J.’s concessions. That does not mean, though, that Bostock has nothing to say about Title IX more broadly, nor do I understand the majority to say otherwise.
—————— 14The majority reaches this conclusion not by assuming that “sex” means “biological sex,” or sex identified at birth, in Title IX, the Javits Amendment, and its accompanying regulations, but by saying that it does, at least in the sports context. Ante, at 10. There was no reason to go that far, however, given that B. P. J. loses on her concessions alone. The majority could, and should, have instead done what the Court did in Bostock v. Clayton County, 590 U. S. 644 (2020): “proceed on the assumption” that “ ‘sex’ ” in Title IX “refer[s] only to biological distinctions between male and female.” Id., at 655.
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Bostock, again, rested on two separate inquiries: first, whether sex was a but-for cause of the challenged action; and second, whether the challenged action constitutes unlawful discrimination. Bostock answers only the first question. It does not answer the second. Merely because a sex distinction may be permissible does not mean that such a distinction is no longer based on sex.
The facts here illustrate the difference. B. P. J. was told that she cannot play on girls’ teams because she was identified as male at birth. If her sex identified at birth had been female, however, B. P. J. would have been allowed to play on girls’ teams. Bostock thus teaches that sex is a but- for cause of her exclusion. See 590 U. S., at 659–660 (concluding that a choice was made “because of sex” when “changing the employee’s sex would have yielded a different choice by the employer”). From here, though, Bostock has nothing to say about whether this discrimination based on sex is unlawful. See ante, at 4 (GORSUCH, J., concurring) (articulating the same). On this point, B. P. J.’s claim fails because Title IX allows this sex distinction for the reasons explained.
Yet there are plenty of contexts outside of athletics in which Title IX applies and does not allow sex distinctions like this one to be drawn. Title IX does not allow schools, for example, to institute mandatory sex-segregated classes or extracurricular activities like chess club, theater, and student government. 34 CFR §106.34(b)(iii). Title IX also prohibits on-campus harassment, discrimination in admission and expulsion, and much, much more.
See, e.g., §§106.8, 106.21, 106.44, 106.45. I do not understand the majority to suggest, for instance, that schools could expressly bar transgender students from participating in certain classes or extracurricular activities entirely, or on the more extreme end, that schools could expel transgender students because they are transgender, and that those actions would not violate Title IX. Such actions would qualify Opinion of SOTOMAYOR, J.
as sex discrimination under Bostock, and in those contexts, just like in the employment context for the purposes of Title VII, treating people differently because of their sex would be unlawful under Title IX.
IV
The majority’s opinion ends by reciting the many wonderful ways in which playing sports can be valuable to young people. It can help build resilience, tenacity, leadership, and discipline. It can lead to life-long friendships, community, and a sense of belonging. It can bring joy and the thrill of victory, along with all the lessons one learns from experiencing defeat. The benefits are immense.
Because of the Court’s decision today, West Virginia, and any other state actor, can deny B. P. J. and others like her these experiences simply because it thinks they have an inherent athletic advantage, even if the facts show that they do not. In the end, to the Court, the facts do not matter, even though the consequences are serious. The ban is absolute, so B. P. J. cannot practice on girls’ teams, even if she would not take anyone’s spot in an eventual competition, even if everyone who tries out for the team makes it, and even if having the chance to participate could aid immensely in treating B. P. J.’s gender dysphoria. Sports, of course, are often zero sum, but the law need not and should not be. Because the Court today errs by reducing the burden, at least in the sports context, that the Constitution places on state actors when classifying based on sex, I respectfully dissent.
SUPREME COURT OF THE UNITED STATES _________________ Nos. 24–43 and 24–38 _________________ WEST VIRGINIA, ET AL., PETITIONERS 24–43 v.
B. P. J., BY HER NEXT FRIEND AND MOTHER, HEATHER JACKSON ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRADLEY LITTLE, GOVERNOR OF IDAHO, ET AL., PETITIONERS 24–38 v.
LINDSAY HECOX, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 30, 2026]