Amicus Curiae Brief — West Virginia, et al., Petitioners v. B. P. J., By Her Next Friend and Mother, Heather Jackson

Supreme Court briefSep 19, 2025

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Nos. 24-38, 24-43

In the Supreme Court of the United States

BRADLEY LITTLE, Governor of Idaho, et al.,

Petitioners,

LINDSAY HECOX, et al.,

Respondents.

WEST VIRGINIA, et al.,

Petitioners,

B.P.J., by next friend and mother, HEATHER JACKSON,

Respondent.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURTS OF APPEALS

FOR THE NINTH AND FOURTH CIRCUITS

BRIEF OF DEFENDING EDUCATION AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

J. Michael Connolly

Counsel of Record

Paul R. Draper

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

mike@consovoymccarthy.com

September 19, 2025

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Table of Cited Authorities .......................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................3

Argument .....................................................................5

Title IX does not force female student

athletes to compete against biological

males. ..............................................................5

A. The text, history, and purpose of Title

IX show that it bars discrimination

based on biological sex, not gender

identity. ....................................................5

B. Bostock does not compel a different

conclusion. ..............................................14

II. The decisions below subordinate the

rights of female athletes to the desires of

their biologically male peers. .......................17

Conclusion .................................................................22

TABLE OF CITED AUTHORITIES

Cases

Adams v. Sch. Bd. of St. Johns County,

57 F.4th 791 (11th Cir. 2022)

.............................................. 1, 7-10, 14, 16, 19, 21

Behlmann v. Century Surety Co.,

794 F.3d 960 (8th Cir. 2015) ............................... 12

Bostock v. Clayton County,

590 U.S. 644 (2020) ....................................9, 15-16

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) ............................................. 18

Clark v. Ariz. Interscholastic Ass’n,

695 F.2d 1126 (9th Cir. 1982) ....................... 18-19

Cohen v. Brown University,

101 F.3d 155 (1st Cir. 1996) ............................... 10

Consumer Prod. Safety Comm’n v. GTE Sylvania,

Inc.,

447 U.S. 102 (1980) ............................................... 5

Corner Post v. Bd. of Governors of Fed. Rsrv. Sys.,

603 U.S. 799 (2024) ............................................. 11

Cummings v. Premier Rehab Keller, PLLC,

596 U.S. 212 (2022) ............................................... 9

D.N. v. DeSantis,

701 F. Supp. 3d 1244 (S.D. Fla. 2023)................ 18

Davis v. Monroe County. Bd. of Educ.,

526 U.S. 629 (1999) ....................................9, 16-17

F.S. Royster Guano Co. v. Virginia,

253 U.S. 412 (1920) ............................................. 18

iii

Facebook v. Duguid,

592 U.S. 395 (2021) ............................................. 12

Franciscan Alliance, Inc. v. Burwell,

227 F. Supp. 3d 660 (N.D. Tex. 2016) .................. 6

Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274 (1998) ............................................. 17

Gore v. Lee,

107 F.4th 548 (6th Cir. 2024) ............................... 6

Grove City College v. Bell,

465 U.S. 555 (1984) ............................................. 11

Haffer v. Temple University,

678 F. Supp. 517 (E.D. Pa. 1987) ................. 18-19

Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241 (1964) ............................................. 16

Jackson v. Birmingham Bd. of Educ.,

544 U.S. 167 (2005) ............................................. 16

Kansas v. U.S. Dep’t of Educ.,

739 F. Supp. 3d 902 (D. Kan. 2024) ..................... 2

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) ............................................. 11

Louisiana v. U.S. Dep’t of Educ.,

737 F.Supp.3d 377 (W.D. La. 2024) ............. 10, 17

Mansourian v. Bd. of Regents of Univ. of California

at Davis,

816 F. Supp. 2d 869 (E.D. Cal. 2011) ................. 18

McCormick v. Sch. Dist. of Mamaroneck,

370 F.3d 275 (2d Cir. 2004) .....................10-11, 13

Mid-Con Freight Sys., Inc. v. Mich. Pub. Serv.

Comm’n,

545 U.S. 440 (2005) ............................................. 10

Milner v. Department of Navy,

562 U.S. 562 (2011) ............................................. 11

Nat’l Bank of Oregon v. Indep. Ins. Agents of Am.,

Inc.,

508 U.S. 439 (1993) ............................................... 7

NFIB v. Sebelius,

567 U.S. 519 (2012) ............................................. 12

Niz-Chavez v. Garland,

593 U.S. 155 (2021) ............................................... 6

Pennhurst v. Halderman,

451 U.S. 1 (1981) ................................................... 9

Pulsifer v. United States,

601 U.S. 124 (2024) ......................................... 8, 14

Tennessee v. Cardona,

2024 WL 3453880 (6th Cir. July 17) .............. 9, 15

Tennessee v. Cardona,

737 F. Supp. 3d 510 (E.D. Ky. 2014) .................... 7

Tigner v. Texas,

310 U.S. 141 (1940) ............................................. 18

United States v. Skrmetti,

145 S. Ct. 1816 (2025) ......................................... 17

United States v. Virginia,

518 U.S. 515 (1996) ............................................. 16

Williams v. Sch. Dist. of Bethlehem,

998 F.2d 168 (3d Cir. 1993) .................................. 3

Yellen v. Confederated Tribes of Chehalis

Reservation,

594 U.S. 338 (2021) ............................................... 8

Yellow Springs Exempted Vill. Sch. Dist. Bd. of Educ.

v. Ohio High School Athletic Ass’n,

647 F.2d 651 (6th Cir. 1981) ............................... 22

Statutes

20 U.S.C. §1681 ....................................... 3, 5, 7, 12, 15

20 U.S.C. §1686 ............................................7-8, 12, 15

42 U.S.C. §2000e-2 .................................................... 15

Pub. L. 93-380, 88 Stat. 484 (1974) ...................... 3, 10

Regulations

34 C.F.R. §106.32 ...................................................... 11

34 C.F.R. §106.33 ...................................................... 11

34 C.F.R. §106.34 ...................................................... 11

34 C.F.R. §106.41 .........................................2-3, 11, 20

40 Fed. Reg. 24128 (1975) ......................................... 11

Other Authorities

Administrative Complaint Against Contoocook Valley

Sch. Dist., DE (Aug. 8, 2025) ................................ 2

Administrative Complaint Against Smith College, DE

(June 20, 2025) ...................................................... 2

Black’s Law Dictionary (4th ed. 1968) ........................ 6

Brake, The Struggle for Sex Equality in Sport and

the Theory Behind Title IX, 34 U. Mich. J. L.

Reform 13 (2000) ................................................... 1

Bray, The Mischief Rule, 109 Geo. L.J. 967 (2021) .. 14

Brooke-Marciniak & de Varona, Amazing things

happen when you give equal funding to women in

sports, World Econ. Forum (Aug. 25, 2016) ......... 2

Coleman & Shreve, Comparing Athletic

Performances the Best Women to Boys and Men,

Duke Law Sch. Ctr. for Sports Law & Policy .... 20

Comment on 2022 Proposed Title IX Rule, DE (Sept.

12, 2022) ................................................................ 2

Comment on 2023 Proposed Title IX Rule, DE (May

15, 2023) ................................................................ 2

Cong. Rec. Vol. 117 (1971) ........................................ 13

Cong. Rec. Vol. 118 (1972) .................................... 3, 13

Downey, Female Volleyball Player Testifies to

Physical, Mental Trauma Since Injury by Trans

Athlete, National Review (Apr. 20, 2023) ........... 21

Flower, Parents upset at ‘unfair advantage’ of trans

women in female soccer leagues will be offered

training to better understand ‘lived experience’ of

transgender players, UK Daily Mail (Apr. 2,

2023) .................................................................... 21

Gaydos, High school field hockey captain speaks out

against rule allowing boys on girls teams after

horrific injury, FOX (Nov. 5, 2023) .............. 20-21

Jones, More Say Birth Gender Should Dictate Sports

Participation, Gallup (June 12, 2023) .................. 4

Purohit, When transgender fighter Fallon broker her

opponent’s skull in MMA fight, Sportskeeda

(Sept. 30, 2021) ................................................... 21

vii

Scalia & Garner, Reading Law: The Interpretation of

Legal Texts (2012) ............................................... 14

The American Heritage Dictionary of the English

Language (1st ed. 1969) ........................................ 6

The Oxford English Dictionary Vol. XV (2d ed. 1989)

............................................................................... 6

INTEREST OF AMICUS CURIAE

Defending Education is a national, nonprofit,

grassroots association.1 Its members include students

and parents with school-aged children. DE uses advocacy, disclosure, and litigation to combat the increasing politicization and indoctrination of K-12 and postsecondary education.

Title IX was enacted to ensure equal educational

opportunity for female students, including in athletics. Indeed, “giving young women an equal opportunity to participate in sports” is “one of Title IX’s major achievements.” Adams v. Sch. Bd. of St. Johns

County, 57 F.4th 791, 818 (11th Cir. 2022) (en banc)

(Lagoa, J., concurring) (cleaned up). Over the past five

decades, Title IX has “precipitated a virtual revolution

for girls and women in sports” and spurred “significant increases in athletic participation” at “all levels

of education.” Brake, The Struggle for Sex Equality in

Sport and the Theory Behind Title IX, 34 U. Mich. J.

L. Reform 13, 15 (2000). “[T]he number of girls playing

high school sports [increased] from one in twentyseven” in 1972 to “one in three” by 2000. Id.

This new era of opportunity has provided measurable benefits for adolescent girls, young women, and

their families. “Girls who play sports stay in school

longer, suffer fewer health problems, enter the labor

1 Per Rule 37.6, no counsel for a party authored this brief in

whole or in part, and no person other than Amicus Curiae, its

members, or its counsel made a monetary contribution to its

preparation or submission.

force at higher rates, and are more likely to land better jobs. They are also more likely to lead.” BrookeMarciniak & de Varona, Amazing things happen when

you give equal funding to women in sports, World

Econ. Forum (Aug. 25, 2016), perma.cc/N38E-HQAE.

DE has vigorously defended Title IX’s guarantee

of equal opportunity—including athletic opportunity—for female students. See Comment on 2022

Proposed Title IX Rule, DE (Sept. 12, 2022),

perma.cc/F5G9-RYAP (highlighting “the Title IX

rights of female athletes to compete in single-sex

sports”); Comment on 2023 Proposed Title IX Rule, DE

(May 15, 2023), perma.cc/FZ62-SQQE (similar). And

DE has challenged educational institutions whose policies erase opportunities for female students in violation of federal law. E.g., Administrative Complaint

Against Smith College, DE (June 20, 2025),

perma.cc/X6UC-AYH6; Administrative Complaint

Against Contoocook Valley Sch. Dist., DE (Aug. 8,

2025), perma.cc/75SV-7VDD.

The decisions below threaten to undo the gains

that female student athletes have made by effectively

eliminating single-sex athletics in the Fourth and

Ninth Circuits. And in holding that federal law forces

female students to compete in sports against biological boys, those courts have turned both Title IX and

the Equal Protection Clause on their heads. See 34

C.F.R. §106.41(b) (explaining that Title IX allows

schools to “operate or sponsor separate teams for

members of each sex”); Kansas v. U.S. Dep’t of Educ.,

739 F. Supp. 3d 902, 923 (D. Kan. 2024) (forcing girls

to compete against boys would “subordinate the fears,

concerns, and privacy interests of biological women to

the desires of transgender biological men” who would

intrude upon spaces normally reserved for “their female peers”). This Court should reverse the judgments below to ensure that federal law continues to

“provide equal athletic opportunity for members of

both sexes.” 34 C.F.R. §106.41(c) (emphasis added).

SUMMARY OF ARGUMENT

Congress overwhelmingly passed Title IX in 1972.

See 118 Cong. Rec. 6277 (1972) (Senate: 88-6); 118

Cong. Rec. 16842 (1972) (House: 275-125). Title IX’s

core prohibition is only 37 words and states: “No person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any education program or activity receiving Federal financial

assistance.” 20 U.S.C. §1681(a).

When Congress approved that language in 1972,

no one was voting to let biological boys play in girls’

sports. Quite the opposite, in fact. With Title IX, Congress sought to promote girls’ sports. It even passed

an amendment requiring the Department of Health,

Education, and Welfare to equalize opportunities for

female student athletes. See Pub. L. 93-380, 88 Stat.

484, 612 (1974). “‘[I]t would require blinders to ignore

that the motivation for’ enacting Title IX … was to

promote opportunities for girls in sports.”

BPJ.Pet.App.59a (Agee, J., dissenting) (quoting Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 175 (3d

Cir. 1993)).

In fact, a bill that imposed Respondents’ reading

of Title IX wouldn’t even pass today. Nearly 70% of

Americans “say transgender athletes should only be

allowed to compete on sports teams that conform with

their birth gender”—a number that is growing over

time. Jones, More Say Birth Gender Should Dictate

Sports Participation, Gallup (June 12, 2023),

perma.cc/F78BATGV.

The Fourth and Ninth Circuits, however, have effectively outlawed single-sex sports in their jurisdictions. Whether as a matter of Title IX or equal protection, the panel majorities in these cases would force

schools to allow biological males who identify as

transgender to participate in women’s sports. Female

athletes will lose spots to their transgender peers because they cannot compete against those peers’ immutable biological advantages. Female athletes will suffer more severe and more frequent injuries because

their transgender competitors are naturally bigger,

faster, and stronger. And they will have to share private spaces, like female locker rooms, with biological

males.

Neither Title IX nor the Equal Protection Clause

could possibly require such counterintuitive results.

Instead, Title IX’s text plainly prohibits discrimination only on the basis of biological sex, and only when

one sex is treated worse than the other. It does not require schools to ignore biological differences in all situations. The statute’s history and congressional intent confirm that conclusion. And the Equal Protection Clause certainly does not compel schools to allow

biological men in women’s sports, where they will inevitably displace their female peers thanks to their

natural physical advantages. If anything, equal protection means schools must preserve female-only

sports teams.

This Court should reverse the judgments below,

restore Title IX’s original public meaning, and ensure

that female students’ right to participate equally in

athletic opportunities remains protected.

ARGUMENT

I. Title IX does not force female student athletes to compete against biological males.

Congress, federal agencies, and courts agreed, for

decades, that Title IX allows schools to maintain separate athletic teams for biological boys and girls. The

statute’s text, history, and purpose prove that consensus correct.

A. The text, history, and purpose of Title IX

show that it bars discrimination based

on biological sex, not gender identity.

1. “[T]he starting point for interpreting a statute

is the language of the statute itself.” Consumer Prod.

Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102,

108 (1980). And Title IX’s language is straightforward. It prohibits discrimination “on the basis of sex”

in any federally funded “education program or activity.” 20 U.S.C. §1681(a). Nothing in that language

suggests that “sex” includes gender identity or that a

school discriminates “on the basis of sex” simply by

maintaining sex-specific sports teams.

This Court gives “terms their ordinary meaning at

the time Congress adopted them.” Niz-Chavez v. Garland, 593 U.S. 155, 160 (2021). When Title IX was

adopted in 1972, the word “sex” meant biological sex

(male or female) based on “reproductive functions.”

The American Heritage Dictionary of the English Language 640 (1st ed. 1969), bit.ly/4nbBg6r; see id. (“Either of two divisions, designated male and female”);

Black’s Law Dictionary 1541 (4th ed. 1968), bit.ly/3IujIDl (“The sum of the peculiarities of structure and

function that distinguish a male from a female organism; the character of being male or female”); The Oxford English Dictionary, Vol. XV at 107-08 (2d ed.

1989), bit.ly/4ntDzS2 (“The sum of those differences in

the structure and function of the reproductive organs

on the ground of which beings are distinguished as

male and female, and of the other physiological differences consequent on these”).

The term “sex” did not, however, include gender

identity. Indeed, no reputable dictionary in common

use around the time of Title IX’s adoption defined

“sex” to include an internal self-perception of one’s

gender apart from one’s biology. Which makes sense:

the very idea of gender identity as a characteristic distinct from biological sex was a novel—and controversial—concept in 1972. See Gore v. Lee, 107 F.4th 548,

562 (6th Cir. 2024) (“The concept of ‘gender identity’

did not enter the English lexicon until the 1960s.”);

Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d

660, 688 (N.D. Tex. 2016) (“Even the early users of the

term ‘gender identity’ recognized the distinction between ‘sex’ and ‘gender identity.’”). The “overwhelming” consensus, in other words, was that the definition

of “sex” turned on “biology and reproductive function.”

Adams, 57 F.4th at 813.

Put simply, “sex” means biological sex, not gender

identity. So when Title IX bans discrimination “on the

basis of sex,” 20 U.S.C. §1681(a), it does not ban discrimination on the basis of gender identity. And it certainly does not ban every distinction between males

and females.

The rest of Title IX confirms the point. See Nat’l

Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508

U.S. 439, 455 (1993) (“Statutory construction … must

account for a statute’s full text” and “structure.”). Multiple provisions in Title IX expressly permit schools to

separate male and female students where such separation makes sense. E.g., 20 U.S.C. §§1681(a)(6)

(schools may associate with sex-selective fraternities

and sororities and other groups like the YMCA and

the Boy Scouts), 1681(a)(7) (Boys State and Girls

State), 1681(a)(8) (father-son and mother-daughter

activities), 1686 (“separate living facilities for the different sexes”). As long as a school provides equal opportunities to male and female students, it need not

allow male students to access female opportunities or

vice-versa. And as these provisions implicitly recognize, in many situations, “safeguarding equal educational opportunities for men and women necessarily

requires differentiation and separation of the sexes at

times.” Tennessee v. Cardona, 737 F. Supp. 3d 510,

530-31 (E.D. Ky. 2014) (cleaned up). The law is not

blind to the reality of sex.

Critically, these provisions preserving schools’

ability to “differentiat[e] between the sexes in certain

instances,” Adams, 57 F.4th at 814, are not exceptions

to Title IX’s general ban on sex discrimination. Rather, they are rules of construction that illuminate

what it means to “discriminate” (or not discriminate)

based on “sex” in the first place. See 20 U.S.C. §1686

(rule allowing for sex-separated living facilities is a

rule of “interpretation” dictating how the statute

“shall be construed”).

Respondents’ contrary position—that Title IX

somehow requires schools to permit male participation in female activities—would “mak[e] a hash of the

scheme Congress devised.” Pulsifer v. United States,

601 U.S. 124, 149 (2024). To start, it offers no explanation for why Congress would permit the preservation of sex-specific activities or living facilities if it believed those practices treated some students unfavorably. Worse, it would actually “swallow” these sexspecific provisions “and render them meaningless.”

Adams, 57 F.4th at 814 n.7. If, for example, a biological male wished to live in a female dormitory, the

school would normally be able to deny that request because Title IX permits a school to “maintai[n] separate

living facilities for the different sexes.” 20 U.S.C.

§1686. But if the biological male identifies as female,

then he would be entitled to live in a female dormitory

because Respondents read Title IX to prohibit discrimination based on gender identity. Adams, 57

F.4th at 813. Bedrock principles of statutory interpretation do not countenance such “highly counterintuitive result[s].” Yellen v. Confederated Tribes of Chehalis Reservation, 594 U.S. 338, 360 (2021).

The best reading of Title IX’s text, in other words,

allows schools to separate sports and similar activities

based on sex. But even if this aspect of Title IX were

somehow ambiguous, Petitioners would still prevail

under the clear statement rule. Because Title IX is an

exercise of Congress’s powers under the Spending

Clause, Davis v. Monroe County. Bd. of Educ., 526

U.S. 629, 640 (1999), it functions “‘in the nature of a

contract’” and “operates based on consent,” Cummings

v. Premier Rehab Keller, PLLC, 596 U.S. 212, 216, 219

(2022). And a party to a contract must “voluntarily

and knowingly accept the terms of that contract.” Id.

at 219 (cleaned up). This means Congress cannot “impose a condition on the grant of federal moneys” unless it does so “unambiguously.” Pennhurst v. Halderman, 451 U.S. 1, 17 (1981). But Title IX contains no

“clear statement” prohibiting sex-specific sports

teams. Adams, 57 F.4th at 815-17.

If anything, recent litigation surrounding Title IX

shows that extending the law to cover male participation in female sports is a novel, controversial, and minority position. This Court, for one, declined to “prejudge” the question when it decided Bostock v. Clayton

County. 590 U.S. 644, 681 (2020); see id. (“we do not

purport to address bathrooms, locker rooms, or anything else of the kind”). And since then, many courts

that have addressed the scope of Title IX’s ban on sex

discrimination have held that it does not cover gender

identity. See Tennessee v. Cardona, 2024 WL 3453880,

at *2 (6th Cir. July 17) (“many jurists have explained”

that Title IX does not “extend to discrimination on the

basis of ‘gender identity’”). Certainly, Title IX does not

unambiguously prohibit sex-separated spaces when

federal courts have “split” on that very question and

this Court has declined to answer it. Louisiana v. U.S.

Dep’t of Educ., 737 F.Supp.3d 377, 397-98 & n.49

(W.D. La. 2024).

2. “Historical context” confirms the text’s plain

meaning. Mid-Con Freight Sys., Inc. v. Mich. Pub.

Serv. Comm’n, 545 U.S. 440, 449 (2005). “Title IX was

enacted in response to evidence of pervasive discrimination against women with respect to educational opportunities.” McCormick v. Sch. Dist. of Mamaroneck,

370 F.3d 275, 286 (2d Cir. 2004). The law, in other

words, was designed to boost “opportunities for female

athletes,” id. at 287, and “giving young women an

equal opportunity to participate in sports” has indeed

been “one of Title IX’s major achievements,” Adams,

57 F.4th at 818 (Lagoa, J., concurring) (cleaned up).

The law’s “remedial focus,” therefore, is on guaranteeing that female students, the “underrepresented gender,” are not boxed out of athletic programs by their

biologically male peers. Cohen v. Brown University,

101 F.3d 155, 175 (1st Cir. 1996).

Title IX’s immediate post-enactment history

points the same way. Regulations adopted almost contemporaneously with the law’s passage embraced the

continued practice of sex-separated sports. Soon after

Title IX was passed, Congress directed the Secretary

of Health, Education, and Welfare to implement the

law by promulgating regulations “with respect to intercollegiate athletic activities” that include “reasonable provisions considering the nature of particular

sport.” 88 Stat. at 612. Those regulations explain that

schools can separate males and females in all sports

after school and in contact sports like “wrestling, boxing, … [and] basketball” during school. 34 C.F.R.

§§106.34(a)(1), 106.41(b); see McCormick, 370 F.3d at

286-88 (discussing the “concern by members of Congress about ensuring equal opportunities for female

athletes”). Other regulations enacted around the same

time embraced the separation of sexes in other areas

as well. E.g., 40 Fed. Reg. 24128, 24139–43 (1975)

(rulemaking); 34 C.F.R. §106.32(b) (student housing);

34 C.F.R. §106.33 (“toilet, locker room, and shower facilities”).

These contemporaneous regulations, “which have

remained consistent over time,” are “especially useful

in determining the statute’s meaning.” Loper Bright

Enterprises v. Raimondo, 603 U.S. 369, 394 (2024). To

that end, this Court has observed that these particular regulations have strong “probative value” and “accurately reflect” Title IX’s text. Grove City College v.

Bell, 465 U.S. 555, 567-68 (1984). But if the decisions

below were correct, that would mean these longstanding regulations have been unlawful from the start.

That unlikely claim is enough on its own to doom Respondents’ reading of the statute.

3. In statutory interpretation, it is the statute’s

text, rather than the legislator’s intent, that governs.

Corner Post v. Bd. of Governors of Fed. Rsrv. Sys., 603

U.S. 799, 815 (2024). But “clear evidence of congressional intent may illuminate” the meaning of the text.

Milner v. Department of Navy, 562 U.S. 562, 572

(2011). And here, the relevant evidence proves that

Congress never meant to force biological boys into

girls’ sports.

Title IX’s text itself proves that Congress never

wanted to erase biological distinctions between male

and female students. NFIB v. Sebelius, 567 U.S. 519,

544 (2012) (“[T]he best evidence of Congress’s intent

is the statutory text.”). Again, when Congress enacted

Title IX, it explicitly stated that the law does not prohibit single-sex activities like fraternities and sororities, father-son and mother-daughter activities,

beauty pageants, or single-sex living facilities. E.g., 20

U.S.C. §§1681(a)(6)-(9), 1686. Accepting Respondents’

view of Title IX requires believing that the same legislators who voted to keep biological boys from joining

a sorority or attending a mother-daughter dance also

voted to give those males a federal right to compete

against their female peers in athletic contests. No rational Congress would draw those lines, and this

Court should not indulge such a “contextually implausible outcome.” Facebook v. Duguid, 592 U.S. 395,

406-07 (2021).

Beyond its sheer absurdity, Respondents’ reading

of the statute would also impute contradictory motives to the legislators who voted for Title IX. On their

view, Congress thought that separating biological

boys and girls in sports, bathrooms, or living facilities

is discriminatory—at least when a student identifies

as a gender that does not match their sex—but voted

to allow those practices anyway. Simply put, that

makes no sense. Cf. Behlmann v. Century Surety Co.,

794 F.3d 960, 964 (8th Cir. 2015) (“‘This Court interprets statutes in a way that’” is “‘reasonable and logical and gives meaning to the statute.’”).

Evidence outside of the text confirms that the Title IX Congress did not intend the outcome embraced

by the Fourth and Ninth Circuits here. Consider, for

example, pre-enactment statements from Title IX’s

primary sponsor, Senator Birch Bayh. In his floor

speech introducing the bill, Senator Bayh explained

that Title IX was designed to combat “the stereotype”

of women as the “weaker sex” and promote opportunities for women in education. 118 Cong. Rec. 5804

(1972). The law was meant to “provide for the women

of America something that is rightfully theirs—an

equal chance to attend the schools of their choice, to

develop the skills they want, and to apply those skills”

outside of the classroom. Id. at 5808. In other statements, Senator Bayh clarified that the law was not intended to eliminate all distinctions between biological

men and women, see 117 Cong. Rec. 30407 (1971) (“I

do not read this as requiring integration … between

the sexes.”), and in fact “permit[s] differential treatment by sex” when it comes to “sports facilities or

other instances where personal privacy must be preserved,” 118 Cong. Rec. 5807 (1972) (emphasis added).

Then, in 1987, members of Congress reiterated

their commitment to preserving single-sex sports

teams. That year, Congress amended Title IX to clarify that “if any part of an education institution received federal funds, the institution as a whole must

comply with Title IX’s provisions.” McCormick, 370

F.3d at 287. And “[t]he congressional debate leading

to” the vote focused on “concern[s] by members of Congress about ensuring equal opportunities for female

athletes” who attended institutions that received federal financial support. Id. (emphasis added).

Title IX, like any statute, “cannot be construed in

the abstract.” Pulsifer, 601 U.S. at 140. To the extent

permitted by the text’s “permissible interpretation[s],” it should be read to “furthe[r] rather than obstruc[t]” congressional “purpose.” Scalia & Garner,

Reading Law: The Interpretation of Legal Texts 63

(2012). For remedial statutes like Title IX, that means

the Court must consider “the problem to which the

statute was addressed, and also the way in which the

statute is a remedy for that problem.” Bray, The Mischief Rule, 109 Geo. L.J. 967, 968–76 (2021). The text,

context, and legislative history all make clear that

Congress adopted Title IX to boost opportunities for

female student athletes. Construing the statute to allow separate sports teams for biological boys and

girls—as both courts and federal agencies have done

for decades—promotes that goal.

Respondents’ reading of the statute, by contrast,

subjugates “biological females’ rights to privacy and to

play competitive sports” to the desire of “transgender

individuals” to join the “sports teams of their choosing.” BPJ.Pet.App.73a (Agee, J., dissenting). Such a

rule would, strangely, provide “more protection

against discrimination on the basis of transgender

status” than “against discrimination on the basis of

sex.” Adams, 57 F.4th at 814. “No Congress has ever

intended such a result.” BPJ.Pet.App.73a (Agee, J.,

dissenting).

B. Bostock does not compel a different conclusion.

In holding that Title IX forces schools to allow biological boys on girls’ sports teams, the Fourth Circuit

below relied almost entirely on this Court’s decision in

Bostock. But Bostock, which applied Title VII’s ban on

employment discrimination, did not silently overturn

decades of consensus about Title IX’s application to

student athletics.

Start with the obvious fact: Title VII and Title IX

are different laws. They “use materially different language,” “serve different goals,” and “have distinct defenses.” Tennessee, 2024 WL 3453880 at *2-3. Title VII

operates in the employment context and makes it categorically illegal to “discriminate against any individual” in any way “because of … sex.” 42 U.S.C. §2000e2(a). “It doesn’t matter if other factors besides the

plaintiff’s sex contributed to the decision. And it

doesn’t matter if the employer treated women as a

group the same when compared to men as a group.”

Bostock, 590 U.S. at 659. An individual’s “sex,” like

their race or religion, simply “is not relevant to the selection, evaluation, or compensation of employees.” Id.

at 660 (cleaned up).

Title IX, on the other hand, takes a more nuanced

approach to discrimination “on the basis of sex” in the

educational context. 20 U.S.C. §1681(a). Rather than

categorically prohibit distinctions based on sex, the

law recognizes a role for such distinctions—indeed, it

expressly allows segregation of male and female students in many circumstances—and instructs that its

general ban on sex discrimination in education “shall

be construed” in light of that recognition. Id. §1686;

see id. §1681(a)(4)-(9). In other words, “Title IX, unlike

Title VII, includes express statutory … carve-outs for

differentiating between the sexes.” Adams, 57 F.4th

at 811.

These textual differences reflect real differences

between schools and the workplace. “[S]chools are unlike the adult workplace.” Davis, 526 U.S. at 651; see

Adams, 57 F.4th at 808 (same). In the workplace, men

and women are “similarly situated” and there is no

good reason to rely in part or in whole on an employee’s sex when deciding whether to hire or fire

them. Bostock, 590 U.S. at 657, 659-60. But as this

Court has said before, there are real and “enduring”

biological “differences between men and women” that

matter in the educational context. United States v.

Virginia, 518 U.S. 515, 533 (1996). Congress recognized those differences and “clearly intended to affirm

certain aspects of sex separation in education—like in

restrooms, showers, locker rooms, and sports—within

[Title IX’s] overall prohibition on sex discrimination.”

BPJ.Pet.App.73a (Agee, J., dissenting).

Accordingly, unlike Title VII, which creates a statutory violation whenever an employer makes a decision based on an employee’s sex, Bostock, 590 U.S. at

659-60, “discrimination” occurs under Title IX only

when a female student is treated “less favorabl[y]”

than her male counterparts, or vice-versa. Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005).

Any analogy between Title IX and Title VII, moreover, must account for the different constitutional

powers underlying each statute. Remember, unlike

Title VII, which is an exercise of Congress’s Commerce

Clause powers, Heart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241, 261 (1964), Title IX is authorized

only under the Spending Clause, Davis, 526 U.S. at

640. The “contractual framework” for Spending

Clause legislation “distinguishes Title IX from Title

VII.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 286 (1998). Schools are subject to Title IX’s mandates only if those requirements are unambiguously

clear. And whatever Title VII requires, it is by no

means clear that Title IX compels schools to allow biological boys on girls’ sports teams.

In fact, the question of whether Bostock’s logic applies to Title IX—which, again, was the Fourth Circuit’s entire rationale—is itself subject to a circuit

split. Louisiana, 737 F.Supp.3d at 397-98 & n.49. So

it is impossible to say that Bostock’s holding clearly

extends to Title IX.

II. The decisions below subordinate the rights

of female athletes to the desires of their biologically male peers.

The Ninth Circuit, for its part, didn’t rely on the

text of Title IX to force biologically male students into

female sports. Instead, it relied on the Equal Protection Clause of the Fourteenth Amendment. See Little.Pet.App.12a. But that rationale fares no better.

The Equal Protection Clause does not require forcing

female students to compete against biologically male

peers who are faster, stronger, and bigger than them.

If anything, it requires the opposite.

A. The Equal Protection Clause prohibits “invidious sex discrimination.” United States v. Skrmetti,

145 S. Ct. 1816, 1833 (2025). But it does not mean that

“things which are different in fact” must be “treated

in law as though they were the same.” Tigner v. Texas,

310 U.S. 141, 147 (1940). And it “does not prevent the

states from resorting to classification for the purposes

of legislation.” F.S. Royster Guano Co. v. Virginia, 253

U.S. 412, 415 (1920). At bottom, it is “essentially a direction that all similarly situated persons should be

treated alike.” City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985). “In applying this standard, the Supreme Court is willing to take into account

actual differences between the sexes, including physical ones.” Clark v. Ariz. Interscholastic Ass’n, 695 F.2d

1126, 1129 (9th Cir. 1982) (collecting cases).

Courts applying this standard to school sports

have held that equal protection requires schools to

provide “‘substantially comparable’” athletic opportunities for male and female students. Mansourian v.

Bd. of Regents of Univ. of California at Davis, 816 F.

Supp. 2d 869, 930-31 (E.D. Cal. 2011); see id. (the requirement is “‘one of comparability, not absolute

equality’”). They have also consistently held that sexsegregated teams are a permissible, and sometimes

necessary, way to achieve that goal. See D.N. v. DeSantis, 701 F. Supp. 3d 1244, 1254 (S.D. Fla. 2023)

(“[T]he government has an important interest in protecting and promoting athletic opportunities for girls.”

(collecting cases)).

That makes sense, of course, because “[s]ponsoring separate men’s and women’s teams … appears to

expand substantially the opportunity for women to

participate in intercollegiate athletics.” Haffer v. Temple University, 678 F. Supp. 517, 525 (E.D. Pa. 1987).

By contrast, “if all of [the school’s] athletic teams were

open to both men and women, the overwhelming majority of team members would be men.” Id.

B. It’s easy to see why eliminating female-only

sports teams would reduce opportunities for young

women and girls and put them at risk of harm. Safety,

fairness, and privacy are all threatened when biological males play women’s sports.

Most obviously, girls will lose spots—either on the

team or on the podium—if they are forced to compete

against biologically male peers who have a natural

physical advantage over them. Because of “average

physiological differences” between men and women,

“males [will] displace females to a substantial extent.”

Clark, 695 F.2d at 1131; see Adams, 57 F.4th at 819

(Lagoa, J., concurring) (“inherent differences” give

men “physiological advantages” over women). Indeed,

recent experience proves this commonsense intuition

true: transgender athletes who participate in female

sports continue to dominate the competition.2

2 E.g., Brief for the Petitioner, No. 24-38, at 4-6; Crane, The

staggering number of medals female athletes lost to trans opponents revealed in explosive UN report, N.Y. Post (Oct. 23, 2024),

perma.cc/7FH5-93FQ; Austin & Hong, Trans athlete wins 2 girls

events at California track and field finals, Associated Press (June

1, 2025), bit.ly/4gxwlKs; Fortin, Transgender athlete Verónica

Garcia wins Washington 2A Girls’ 400-meter state title again,

NonStop Local KHQ (June 1, 2025), perma.cc/7BLK-GBX7;

Thompson, Trans athlete wins MVP of women's college basketball

tournament after dominating Christian rival in title game, FOX

(Mar. 2, 2025), perma.cc/W7LK-68LQ; McCaughey, Transgender

Weightlifter Shatters Women’s Deadlifting Record, Trounces

Competitors in Canadian Championship, New York Sun (Aug.

16, 2023), perma.cc/T7B3-RS4X.

Girls face the risk of physical injury as well. Males

possess “categorically different strength, speed, and

endurance.” Coleman & Shreve, Comparing Athletic

Performances the Best Women to Boys and Men, Duke

Law Sch. Ctr. for Sports Law & Policy,

perma.cc/3Z7R-W6Q2. These physical differences increase the risk to females when they are forced to compete against males, particularly in contact sports.

(That’s why Title IX regulations have long specified

that schools “may operate or sponsor separate teams

for members of each sex where … the activity involved

is a contact sport,” 34 C.F.R. §106.41(b), though even

this safety-oriented rule may be unlawful on Respondents’ theory.) Female athletes have, in fact, suffered

traumatic injuries when playing against biologically

male athletes: dental injuries, neck injuries, skull

fractures, and more. And injured athletes are, along

with their other female teammates, understandably

scared to return to the field—where they may have to

face off against biologically male competitors again.

In one representative incident, a female field

hockey player was struck in the face when a biological

male on the opposing team hit the ball in her direction. Gaydos, High school field hockey captain speaks

out against rule allowing boys on girls teams after horrific injury, FOX (Nov. 5, 2023), perma.cc/34J9FLKM. Her injuries required hospitalization, and her

teammates “fear[ed] that they had to go back out onto

the field and continue … playing against a male athlete who hospitalized one of our own.” Id. “By trying

to create equality,” one player explained, the league

had “only creat[ed] inequalities.” Id. Other similarly

distressing examples abound.3

Secondary effects will be significant as well. When

young women participate in sports more, they also

“‘stay in school longer, suffer fewer health problems,

enter the labor force at higher rates, and are more

likely to land better jobs.’” Adams, 57 F.4th at 820 (Lagoa, J., concurring). But if the Fourth and Ninth Circuits get their way, they will unwind those gains to

allow transgender biological males to participate in female sports.

These very real harms are precisely what motivated the State of Idaho to adopt its Fairness in

Women’s Sports Act. See Brief for Petitioners, No. 2438, at 14-16 (“Males’ inclusion in female athletic competitions concerned the legislators because they considered it unfair,” and they passed the Act to

“preserv[e] opportunities for girls and women”).

Shockingly, though, the Ninth Circuit concluded that

Idaho’s law—which preserves female sports for female

students—somehow “undermine[s]” the State’s inter-

3 E.g., Downey, Female Volleyball Player Testifies to Physi-

cal, Mental Trauma Since Injury by Trans Athlete, National Review (Apr. 20, 2023), perma.cc/D2W5-QGWE; Purohit, When

transgender fighter Fallon broker her opponent’s skull in MMA

fight, Sportskeeda (Sept. 30, 2021), perma.cc/G876-K6KA;

Flower, Parents upset at ‘unfair advantage’ of trans women in female soccer leagues will be offered training to better understand

‘lived experience’ of transgender players, UK Daily Mail (Apr. 2,

2023), perma.cc/H95F-TZUE.

ests in “women’s equality” and “fairness in female athletic teams.” Pet.App.40a. That conclusion refutes itself.

When we “measure equal opportunity” in school

sports, “relevant [biological] differences” between men

and women “cannot be ignored.” Yellow Springs Exempted Vill. Sch. Dist. Bd. of Educ. v. Ohio High

School Athletic Ass’n, 647 F.2d 651, 657 (6th Cir.

1981). Experience shows that, because of natural differences between the sexes, women suffer when they

are forced to compete against biological men. “When

males and females are not in fact similarly situated

and when the law is blind to those differences, there

may be as much a denial of equality as when a difference is created which does not exist.” Id.

Separating male and female students based on biologically real differences is not discrimination under

Title IX or under the Equal Protection Clause. Instead, sex-specific sports teams are a beneficial and

often necessary measure to ensure that female students have the same athletic opportunities as their

male peers. Requiring schools to ignore these biological realities and place female students in competitions

against their male peers would undermine Title IX’s

central purpose and jeopardize female students’

safety and privacy.

CONCLUSION

This Court should reverse the judgments below.

Respectfully submitted,