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.

____________________

STATE OF WEST VIRGINIA, ET AL.,

Petitioners,

B.P.J., BY NEXT FRIEND AND MOTHER,

HEATHER JACKSON,

Respondent.

____________________

ON WRITS OF CERTIORARI TO THE U.S. COURTS OF

APPEALS FOR THE NINTH AND FOURTH CIRCUITS

_______________

BRIEF FOR CONCERNED WOMEN FOR

AMERICA AND SAMARITAN’S PURSE

AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

_______________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

TABLE OF CONTENTS

Page

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

Interest of Amici Curiae.............................................. 1

Summary of the Argument ......................................... 2

Argument ..................................................................... 4

The novel as-applied theory eliminates the

distinction between intermediate and strict

scrutiny. ............................................................ 5

A. The as-applied intermediate scrutiny

theory requires perfect fit. ......................... 7

B. Precedent contradicts an as-applied

theory........................................................ 11

C. The consequences of the as-applied theory

would be significant. ................................ 16

D. Defenses of the as-applied theory lack

merit. ........................................................ 21

II. Under equal protection, “sex” is not a

subjective category divorced from physical,

biological reality. ............................................ 24

III. The lower courts’ divergent applications of

intermediate scrutiny suggest a return to text

and history. ..................................................... 29

Conclusion ................................................................. 33

TABLE OF AUTHORITIES

Page(s)

CASES

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

3 F.4th 1299 (CA11 2021)........................................9

Armour v. City of Indianapolis, Ind.,

566 U.S. 673 (2012)................................................ 20

Beller v. Middendorf,

632 F.2d 788 (CA9 1980) ....................................... 21

Bucklew v. Precythe,

587 U.S. 119 (2019).......................................... 19, 20

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)................................................ 10

Caban v. Mohammed,

441 U.S. 380 (1979)................................................ 22

Califano v. Jobst,

434 U.S. 47 (1977).................................................. 14

Califano v. Webster,

430 U.S. 313 (1977)................................................ 13

City of Austin v. Reagan Nat’l Advert.

of Austin, LLC,

596 U.S. 61 (2022).................................................. 12

City of Boerne v. Flores,

521 U.S. 507 (1997)..................................................6

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985)...................... 2, 5, 14, 15, 16, 20

Clark v. Jeter,

486 U.S. 456 (1988)..................................................2

iii

Craig v. Boren,

429 U.S. 190 (1976)............................................ 8, 30

Crawford v. Washington,

541 U.S. 36 (2004).................................................. 32

Duncan v. Bonta,

19 F.4th 1087 (CA9 2021)...................................... 32

Engquist v. Oregon Dep’t of Agr.,

553 U.S. 591 (2008).......................................... 25, 27

Frontiero v. Richardson,

411 U.S. 677 (1973)..................................................6

Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal,

546 U.S. 418 (2006)..................................................7

Gregory v. Ashcroft,

501 U.S. 452 (1991)................................................ 20

Grimm v. Gloucester Cnty. Sch. Bd.,

972 F.3d 586 (CA4 2020) ....................................... 26

Jana-Rock Const., Inc. v. New York State

Dep’t of Econ. Dev.,

438 F.3d 195 (CA2 2006) ....................................... 30

Jones v. Governor of Fla.,

975 F.3d 1016 (CA11 2020) ................. 15, 16, 21, 24

June Med. Servs. LLC v. Russo,

591 U.S. 299 (2020)................................................ 33

Kimel v. Fla. Bd. of Regents,

528 U.S. 62 (2000).................................................. 20

Kolbe v. Hogan,

849 F.3d 114 (CA4 2017) ....................................... 31

Lehr v. Robertson,

463 U.S. 248 (1983).......................................... 14, 15

Mass. Bd. of Retirement v. Murgia,

427 U.S. 307 (1976)................................................ 21

Michael M. v. Superior Ct. of Sonoma Cnty.,

450 U.S. 464 (1981)................................................ 23

New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022).............................................. 31, 32

Nguyen v. INS,

533 U.S. 53 (2001)................................ 13, 18, 19, 23

Parents Involved in Cmty. Sch. v. Seattle

Sch. Dist. No. 1,

551 U.S. 701 (2007)............................................ 6, 25

Rose v. Mitchell,

443 U.S. 545 (1979)................................................ 25

Rostker v. Goldberg,

453 U.S. 57 (1981).................................................. 13

Sessions v. Morales-Santana,

582 U.S. 47 (2017).............................................. 9, 15

TikTok Inc. v. Garland,

604 U.S. 56 (2025)....................................................7

Turner Broad. Sys., Inc. v. FCC,

520 U.S. 180 (1997).............................................. 2, 8

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994)..................................................7

United States v. Edge Broad. Co.,

509 U.S. 418 (1993).............................. 12, 13, 23, 32

United States v. Lee,

455 U.S. 252 (1982)................................................ 10

United States v. Playboy Ent. Grp., Inc.,

529 U.S. 803 (2000)..................................................8

United States v. Rahimi,

602 U.S. 680 (2024).......................................... 31, 32

United States v. Skrmetti,

145 S. Ct. 1816 (2025)............................................ 27

United States v. Virginia,

518 U.S. 515 (1996)...... 3, 5, 6, 17, 18, 25, 27, 28, 29

Ward v. Rock Against Racism,

491 U.S. 781 (1989)...................................... 7, 11, 32

Wengler v. Druggists Mut. Ins. Co.,

446 U.S. 142 (1980)................................................ 23

OTHER AUTHORITIES

A. Scalia, The Rule of Law as a Law of Rules,

56 U. Chi. L. Rev. 1175 (1989) .............................. 33

Brief for Concerned Women for America and

Samaritan’s Purse as Amici Curiae in Support of

State Respondents, 2024 WL 4594899, United

States v. Skrmetti,

No. 23-477 (Oct. 15, 2024) ............................... 30, 31

Brief for the United States as Amicus Curiae, 2023

WL 2859726, B.P.J. v. W. Virginia State Bd. of

Educ., 98 F.4th 542 (CA4 2024) ............................ 10

Defs’ Reply in Support of Mot. for Summ. J., Boe v.

Marshall, No. 22-cv-184, Doc. 700-1 (M.D. Ala.

Aug. 5, 2024), https://perma.cc/9CCC-D4PC ........ 26

Delayed Puberty in Boys: Information for Parents,

Am. Acad. of Pediatrics (June 9, 2015),

https://perma.cc/29M3-DSDB ................................ 17

E. Lips, Bearded MA ‘Trans’ HS Athlete Injures

Multiple Girls; Now Story Part of NH Debate, NH

Journal (Apr. 4, 2024),

https://perma.cc/SDR8-BGNB ............................... 18

Editorial, VMI’s Transgender Policy, The Cadet (Nov.

17, 2023), https://perma.cc/258X-VL6M................ 28

J. Alicea & J. Ohlendorf, Against the Tiers of

Constitutional Scrutiny,

National Affairs 72 (2019) ..................................... 31

J. Tasch, Team Forfeits After Girls Basketball Player

Allegedly Hurt in Play with Male who Identifies as

Female, N.Y. Post (Feb. 20, 2024),

https://perma.cc/HAQ6-54V9................................. 29

K. Eyer, As-Applied Equal Protection,

59 Harv. C.R.-C.L. L. Rev. 49 (2024) ........ 22, 23, 24

L. Sharma et al., Short Stature, Nat’l Insts. of Health

(2025), https://perma.cc/JKL8-42TU ..................... 17

L. Worrick, Rules for Thee . . . and Also for Me: Why

Courts Should Reject As-Applied Intermediate

Scrutiny, 37 Regent U. L. Rev. 131 (2024) ........... 24

M. McNamara et al., An Evidence-Based Critique of

“The Cass Review” on Gender-affirming Care for

Adolescent Gender Dysphoria (July 1, 2024),

https://perma.cc/9D5Q-D6JC................................. 26

O. Land, Male Rikers Island Inmate who was

‘Instructed to Claim He was Transgender’ Raped

Female Prisoner: Lawsuit, N.Y. Post (Jan. 24,

2024), https://perma.cc/ZX4W-KNQG ................... 29

R. Pollina, High School Track Star Appears to Give

‘Thumbs-Down’ After She’s Pushed out of State

vii

Champs by Transgender Competitor: ‘Cheated’,

N.Y. Post (May 22, 2023),

https://perma.cc/XJH4-ZD95 ................................. 18

U.S. Resp. in Opp. to Mot. for Summ. J., Boe v.

Marshall, No. 22-cv-184, Doc. 627

(M.D. Ala. July 1, 2024)......................................... 26

W. Martin & M. Cash, Swimmer Lia Thomas Beat 2

Olympic Medalists Amid Protests to Make History

as the First Trans Athlete to Win an NCAA Title,

Business Insider (Mar. 18, 2022),

https://perma.cc/XZG2-MXTH ............................... 18

INTEREST OF AMICI CURIAE

Concerned Women for America (“CWA”) is the

largest public policy organization for women in the

United States, with about half a million supporters in

all 50 states. CWA advocates for traditional values

that are central to America’s cultural health and

welfare. CWA is made up of people whose voices are

often overlooked—average American women whose

views are not represented by the powerful or the elite.

CWA has a substantial interest in this case. CWA’s

mission includes ensuring that female athletes can

fully participate in sports fairly and safely. Thus,

CWA advocates for laws that limit participation in

female sports to biological females.

Samaritan’s Purse is a nondenominational,

evangelical Christian organization formed in 1970 to

provide spiritual and physical aid to hurting people

around the world. The ministry operates relief

programs for vulnerable women who are victims of

war, famine, and disaster. Samaritan’s Purse’s

concern arises when concepts of Biblical and scientific

reality are threatened by executive, legislative, or

judicial action compelling ideologies that diminish

common grace related to safety, fairness, privacy,

speech, and religious free exercise. *

* Under Rule 37.6, no counsel for a party authored this brief in

whole or in part, and no person other than amici curiae, their

members, or their counsel made a monetary contribution to its

preparation or submission.

SUMMARY OF THE ARGUMENT

Under the established intermediate scrutiny rule,

the Respondents in these cases should lose. Pitting

boys against girls in sports is unfair. States have an

important objective in ensuring equal athletic

opportunities for girls. And these laws are

substantially related to that objective because boys

generally have an athletic advantage over girls.

This brief makes three points in support of

reversal. First, the courts below wrongly adopted an

unprecedented as-applied intermediate scrutiny

theory that focuses on individual circumstances. On

that theory, even if a law satisfies intermediate

scrutiny, any person can claim an exemption by

showing that the State’s objective may not fully apply

to that person. That theory transforms intermediate

scrutiny into the functional equivalent of strict

scrutiny by requiring otherwise constitutional laws to

perfectly fit the challenger’s individual circumstances. Intermediate scrutiny has never demanded

a plaintiff-by-plaintiff fit; it limits “discriminatory

classifications,” not applications. Clark v. Jeter, 486

U.S. 456, 461 (1988). After all, intermediate scrutiny

allows some amount of over-inclusiveness “so long as

the means chosen are not substantially broader than

necessary to achieve the government’s interest.”

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 218

(1997) (emphasis added). This Court has explained

that courts “should look to the likelihood that

governmental action premised on a particular

classification is valid as a general matter.” City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446

(1985).

Rather than adopt a novel as-applied approach—

which even the Biden Administration refused to

endorse below—this Court should analyze these laws

at most under the accepted intermediate scrutiny

standard: laws containing a sex classification are

valid if “substantially related” to an “important

governmental objective.” United States v. Virginia,

518 U.S. 515, 533 (1996) (cleaned up). These laws

easily meet that standard. The Respondents agreed

that providing equal athletic opportunities for females

is an important governmental objective. B.P.J. Pet.

87a–88a; Hecox Pet. 148a–49a. And as the district

court in B.P.J. found, “sex, and the physical

characteristics that flow from it, are substantially

related to athletic performance and fairness in

sports.” B.P.J. Pet. 92a.

Second, by correcting the decisions below, this

Court can preserve the path of women’s equality that

it charted in Virginia. Increasingly, litigants and

lower courts (including the Ninth Circuit here) are

rejecting what this Court recognized: that “[i]nherent

differences between men and women” “are cause for

celebration.” 518 U.S. at 533 (cleaned up). Instead,

they frame sex as an indeterminate construct based

on personal feelings. That understanding of sex would

make intermediate scrutiny unadministrable and

incapable of protecting women’s equality. Sexdiscrimination claims would devolve from the

objective and administrable immutable male-female

binary into chaos, as men hijack women’s sports and

private spaces. The Court should reverse the ongoing

devolution of intermediate scrutiny rules into class-ofone claims based on innumerable undefined,

subjective, ever-changing identities.

Third and alternatively, the Court should

recognize that intermediate scrutiny has no textual or

historical basis in the first place. That test is

especially improper in the context of these challenges,

which are not ultimately about differential treatment

based on sex but how the government defines male

and female. Rather than extend the infirm and

manipulable doctrine of intermediate scrutiny—

whose rules often appear to be applied differently

depending on the underlying constitutional right—the

Court should either reject it or at a minimum apply it

consistently with historical meaning and other

constitutional applications.

ARGUMENT

1. The Fourth Circuit said that B.P.J. “challenges

[West Virginia’s Act] only as applied to her.” B.P.J.

Pet. 27a. The Ninth Circuit used similar reasoning.

Hecox Pet. 48a (focusing on the small group of

“transgender women” “like Lindsay”). This approach

misunderstands intermediate scrutiny. Unlike strict

scrutiny, intermediate scrutiny asks whether a law’s

classification is sufficiently tailored to the State’s

interest. That question focuses on the group classification, and the main question about the individual

plaintiff is simply whether they are a member of the

group subject to the law’s classification. Unlike some

applications of strict scrutiny, intermediate scrutiny

does not require that the law be the least restrictive

means of furthering the State’s interest. An asapplied intermediate scrutiny theory collapses this

distinction. That theory is unsupported by precedent.

And it would upend state regulatory schemes and

revolutionize constitutional adjudication.

2. This Court should renew its commitment to

upholding sex-based classifications that respect the

“enduring” “[p]hysical differences between men and

women” for American women’s benefit. Virginia, 518

U.S. at 533. Sex discrimination was never about an

individual’s psychological autonomy to impose their

present identity on others. It has always concerned an

immutable characteristic: biological sex. Departing

from that standard leaves physical reality,

administrable standards, and precedent behind. This

Court should stay the biological sex-discrimination

course and corral the below frolics into an

unrestrainable subjective-gender-identity standard.

3. Intermediate scrutiny should not apply at all to

challenges to a State’s biological definition of sex, for

that definition does not treat the sexes differently.

Extending intermediate scrutiny to this new type of

challenge is especially unwarranted given the test’s

lack of textual or historical grounding, manipulability, and divergent applications across constitutional

rights.

The novel as-applied theory eliminates the

distinction between intermediate and

strict scrutiny.

“The general rule is that legislation is presumed to

be valid,” and a law “will be sustained if the

classification drawn by the statute is rationally

related to a legitimate state interest.” Cleburne, 473

U.S. at 440. But courts are more suspicious of certain

classifications. Thus, laws that “classif[y] by race,

alienage, or national origin” “are subjected to strict

scrutiny.” Ibid. Such “classifications are simply too

pernicious to permit any but the most exact

connection between justification and classification,”

and the government “must demonstrate that the use

of individual racial classifications . . . is narrowly

tailored to achieve a compelling government interest.”

Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.

No. 1, 551 U.S. 701, 720 (2007) (cleaned up). In some

contexts, strict scrutiny requires the government to

“show that it has adopted the least restrictive means

of achieving [its] interest,” “the most demanding test

known to constitutional law.” City of Boerne v. Flores,

521 U.S. 507, 534 (1997).

Sex-based classifications receive lesser scrutiny.

As this Court has recognized, “[t]he two sexes are not

fungible,” and there are “inherent differences”

between the sexes. Virginia, 518 U.S. at 533 (cleaned

up). These differences “remain cause for celebration,

but not for denigration of the members of either sex.”

Ibid. Thus, sex classifications have received

intermediate scrutiny, which requires that the

classification “serve[] important governmental

objectives” with means that “are substantially related

to the achievement of those objectives.” Ibid. (cleaned

up).

Courts also apply intermediate scrutiny outside of

Fourteenth Amendment equal protection claims. For

instance, courts apply intermediate scrutiny for sex

discrimination claims against the federal government

under the Fifth Amendment’s Due Process Clause.

See Frontiero v. Richardson, 411 U.S. 677, 690–91

(1973). Courts apply intermediate scrutiny to contentneutral time, place, or manner restrictions. In these

cases too, “a regulation need not be the least

[]restrictive means,” but it cannot “burden

substantially more speech than is necessary to

further” the government’s legitimate interests.

TikTok Inc. v. Garland, 604 U.S. 56, 76–77 (2025)

(first quoting Turner Broad. Sys., Inc. v. FCC, 512

U.S. 622, 662 (1994); then quoting Ward v. Rock

Against Racism, 491 U.S. 781, 799 (1989)).

In sum, this Court’s precedents teach that

intermediate scrutiny has two main requirements:

(1) the government must have an important interest,

and (2) the law must closely—but not precisely—

further that interest.

The novel as-applied intermediate scrutiny theory

is flawed for three reasons. First, it requires perfect fit

of the sort only required, if ever, by strict scrutiny.

Second, it is contradicted by precedent. Third, it would

upend state regulatory schemes and constitutional

adjudication in many areas of law. And the only

apparent defense of this theory lacks merit.

A. The as-applied intermediate

theory requires perfect fit.

scrutiny

The as-applied theory collapses the distinction

between strict and intermediate scrutiny, requiring a

perfect fit between an otherwise lawful classification

and a specific plaintiff’s circumstances. When

applying strict scrutiny, at least in some contexts,

courts examine whether “application of the [legal]

burden to the person represents the least restrictive

means of advancing a compelling interest.” Gonzales

v. O Centro Espirita Beneficente Uniao do Vegetal, 546

U.S. 418, 423 (2006) (emphasis added) (cleaned up).

That approach may make sense when the least

restrictive means test applies. If even one burdensome

application of a law subject to strict scrutiny is

unnecessary to achieve the government’s objective,

then arguably the law is not the least restrictive

means. That would mean it flunks strict scrutiny, and

the plaintiff subjected to the unnecessary burden

wins. Again, strict scrutiny is not always applied this

way, but it is at least logically possible to consider

such an “as-applied” strict scrutiny argument.

As-applied intermediate scrutiny, by contrast, is

incoherent. Intermediate scrutiny is “a less rigorous

analysis” than strict scrutiny. Turner Broad., 520 U.S.

at 213. By definition, intermediate scrutiny’s fit is

looser than the “narrow[] tailor[ing]” or “least

restrictive means” required by strict scrutiny. United

States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813

(2000). Thus, intermediate scrutiny tolerates overinclusivity that strict scrutiny would not: a statute

can pass intermediate scrutiny even if the states’

interest is not achieved every time. Turner Broad.,

520 U.S. at 216.

Certainly, intermediate scrutiny does not tolerate

too much over-inclusivity. See, e.g., Craig v. Boren,

429 U.S. 190, 202 (1976) (“[A] correlation of 2%”

between sex and the relevant behavior “must be

considered an unduly tenuous ‘fit.’”). But it tolerates

laws with some unnecessary applications. While a 2%

correlation might be too little, 100% is far too much.

See id. at 204 (calling for merely “a legitimate,

accurate proxy”); Turner Broad., 520 U.S. at 216–17

(acknowledging that a law is not overbroad even when

the government’s interest is not implicated in every

application). Otherwise, intermediate scrutiny is no

different from strict scrutiny.

Contrary to the Fourth Circuit’s theory, it is

incoherent to ask whether the law’s application to a

single plaintiff is permissibly overinclusive. That

inquiry has no meaning. And the Ninth Circuit’s effort

to focus on a very small group of people likewise

misses the mark. See Adams v. Sch. Bd. of St. Johns

Cnty., 3 F.4th 1299, 1323–24 (CA11 2021) (Pryor, C.J.,

dissenting).

Rather, the over-inclusivity question focuses on

the overall group classification. In other words, the

over-inclusivity question is exactly what the

traditional intermediate scrutiny standard says: is

the law’s group-wide classification sufficiently

tailored to an important interest? That connection is

assessed by group-wide characteristics. The

longstanding “two remedial alternatives” confirms

this group focus: “withdrawal of benefits from the

favored class” or “extension of benefits to the excluded

class.” Sessions v. Morales-Santana, 582 U.S. 47, 72–

73 (2017). Under intermediate scrutiny, the law

cannot be “overbroad[]” simply because its application

to a single plaintiff is unnecessarily burdensome. Id.

at 63 n.13. That is nonsensical.

The Fourth Circuit did not try explaining how its

theory would not collapse intermediate and strict

scrutiny, other than noting the irrelevant fact that

“winning an as-applied challenge does not impact the

state’s ability to apply its law to other parties.” B.P.J.

Pet. 30a. But that confuses a remedial question with

whether the law violates equal protection at all. The

Fourth Circuit’s explanation is also difficult to credit

practically when it comes to unobservable and

subjective criteria like gender identity, a topic

addressed below.

The Fourth Circuit also reasoned that “a

defendant may prevail by showing that its refusal to

make an exception for the plaintiff’s individual

circumstances itself satisfies the relevant level of

constitutional scrutiny.” B.P.J. Pet. 30a. But this does

not distinguish as-applied intermediate scrutiny from

strict scrutiny. Certainly, the Fourth Circuit’s

suggestion might be true in strict scrutiny cases like

the free exercise case it relied on. See ibid. (discussing

United States v. Lee, 455 U.S. 252 (1982)); see also

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 734

(2014) (explaining “the fundamental point” of Lee as

“there simply is no less restrictive alternative to the

categorical requirement to pay taxes”). But that

showing should never be required under intermediate

scrutiny, where individual circumstances are

irrelevant.

The United States’s prior position provides a

helpful contrast, as it refused to press the Fourth

Circuit’s version of as-applied intermediate scrutiny

as amicus below. The Biden Administration argued

that “the State’s categorical exclusion of all

transgender girls—including those who, like B.P.J.,

have no sex-based competitive advantage over other

girls—from competing . . . is not substantially related

to achieving the State’s asserted interest.” Brief for

the United States as Amicus Curiae 18–19, 2023 WL

2859726, B.P.J. v. W. Virginia State Bd. of Educ., 98

F.4th 542 (CA4 2024); see also Hecox Pet. 48a–49a

(adopting a similar position).

Focusing on this very small group of individuals is

wrong, as explained above. But the Fourth Circuit’s

theory was even more extreme. The Biden Administration argued that the law is overbroad as applied

to the group of “all transgender girls,” merely using

the plaintiff as an example to show that supposed

over-inclusivity. But B.P.J. argued that the law is

invalid as applied just because the State’s asserted

interests supposedly do not apply to B.P.J. Under this

theory—adopted by the Fourth Circuit—B.P.J. would

win here even if every other transgender girl

dominated in girls’ sports. As the Biden Administration’s refusal to sign on to this novel theory

suggests, this theory bears no relation to intermediate

scrutiny. To maintain the distinction between strict

and intermediate scrutiny, the Court should reject

novel as-applied theories.

B. Precedent

theory.

contradicts

as-applied

The weight of precedent is also against the asapplied theory. Time and again, this Court has said

that individual characteristics have no bearing on a

law’s constitutionality under intermediate scrutiny.

Take Ward v. Rock Against Racism, where the

respondent argued that a city’s requirement that it

use the city’s sound equipment and technician for its

performance failed intermediate scrutiny. 491 U.S. at

787–90. The city said its regulation would “eliminate[]

the problems of inexperienced technicians and insufficient sound volume that had plagued some bandshell

performers.” Id. at 801. This Court noted that “this

concern [was] not applicable to respondent’s concerts,

which apparently were characterized by more-than-

adequate sound amplification.” Ibid. But this “fact

[was] beside the point, for the validity of the

regulation depends on the relation it bears to the

overall problem the government seeks to correct, not

on the extent to which it furthers the government’s

interests in an individual case.” Ibid. The Court

continued: “the regulation’s effectiveness must be

judged by considering all the varied groups that use

the bandshell, and it is valid so long as the city could

reasonably have determined that its interests overall

would be served less effectively without the soundamplification guideline.” Ibid.

Likewise, the Court in United States v. Edge

Broadcasting Co. refused to sanction an as-applied

challenge to a federal prohibition on broadcasting of

lottery advertising by broadcasters licensed in States

that banned lotteries. 509 U.S. 418 (1993). Applying

intermediate scrutiny, the Court rejected an asapplied challenge from a broadcaster licensed in

North Carolina (where lotteries were prohibited) but

whose viewers were primarily in Virginia (where

lotteries were permitted). See id. at 423–25; see also

City of Austin v. Reagan Nat’l Advert. of Austin, LLC,

596 U.S. 61, 73 (2022) (describing the commercial

speech test as “intermediate scrutiny”). The Court

said that whether the “regulation directly advances

the governmental interest asserted” “cannot be

answered by limiting the inquiry to whether the

governmental interest is directly advanced as applied

to a single person or entity.” Edge, 509 U.S. at 427.

The Court said that was “the wrong question”: “[e]ven

if there were no advancement as applied,” “there

would remain the matter of the regulation’s general

application to others.” Ibid. Thus, the regulation could

“directly advance[] the governmental interest” “even

if, as applied to Edge, there were only marginal

advancement of that interest.” Id. at 429–30. “[T]he

validity of the restriction” is “judge[d]” “by the relation

it bears to the general problem,” “not by the extent to

which it furthers the Government’s interest in an

individual case.” Id. at 430–31.

In an equal protection case, Nguyen v. INS, this

Court applied intermediate scrutiny to a law

providing different citizenship rules for children born

abroad and out of wedlock depending on whether the

citizen parent was the mother or the father. 533 U.S.

53, 61 (2001). The plaintiffs argued that there was no

“guarantee” that the law would always advance the

government’s asserted interests. Id. at 69. This Court

held that “[t]his line of argument misconceives” “the

manner in which we examine statutes alleged to

violate equal protection.” Ibid. “None of our genderbased classification equal protection cases have

required that the statute under consideration must be

capable of achieving its ultimate objective in every

instance.” Id. at 70. Instead, it is enough that “the

means adopted by Congress are in substantial

furtherance of important governmental objectives.”

Ibid.

Many other cases are in accord. See Rostker v.

Goldberg, 453 U.S. 57, 81 (1981) (upholding the

exclusion of women from selective-service registration

even though “a small number of women could be

drafted for noncombat roles”); Califano v. Webster,

430 U.S. 313, 318 n.5 (1977) (per curiam) (upholding

a statute providing higher Social Security benefits for

women than for men because “women on the average

received lower retirement benefits than men.”

(emphasis added)); Califano v. Jobst, 434 U.S. 47, 55

(1977) (“[B]road legislative classification must be

judged by reference to characteristics typical of the

affected classes rather than by focusing on selected,

atypical examples.”).

The laws at issue operate within those bounds.

They prohibit biological boys from competing in girls’

sports, without exception. That is the policy choice

that citizens made, consistent with intermediate

scrutiny. But if the Court lets a vision of as-applied

intermediate scrutiny control, that would create a

significant, judicially imposed exception to these laws

via a perfect fit requirement—something this Court

has never required, and the citizens’ representatives

never voted for.

To salvage its novel as-applied theory, the Fourth

Circuit pointed to Lehr v. Robertson, 463 U.S. 248

(1983), and Cleburne, 473 U.S. at 440. But neither is

about sex, and neither applied intermediate scrutiny.

In Lehr, this Court upheld a law that

“guarantee[d] to certain people the right to veto an

adoption.” 463 U.S. at 266. Under the challenged law,

“[t]he mother of an illegitimate child is always within

that favored class, but only certain putative fathers

are included.” Ibid. Because the father in Lehr “never

established a substantial relationship with his

daughter,” the government could constitutionally

distinguish between him and others like him and

fathers who “are in fact similarly situated [to the

mother] with regard to their relationship with the

child.” Id. at 267.

Lehr did not apply intermediate scrutiny at all.

Instead, it found no equal protection violation because

the plaintiffs were not “similarly situated” to those in

the supposedly favored group. Ibid.; see MoralesSantana, 582 U.S. at 64 n.12 (“The ‘similarly situated’

condition was not satisfied in Lehr.”). In other words,

the Court held that the regulation discriminated

between parents with “a substantial relationship”

with their child and parents without that

relationship, not based on sex. Lehr, 463 U.S. at 266–

67.

Cleburne does not support the as-applied

approach, either. There, this Court considered

whether denying a conditional use zoning permit to a

group home violated equal protection. 473 U.S. at 435.

Rather than create a new suspect class, the Court

asked if the zoning “rational[ly]” met “a legitimate

end.” Id. at 442. In that inquiry, courts “should look”

to whether the “classification is valid as a general

matter.” Id. at 446 (emphasis added).

The Fourth Circuit emphasized that Cleburne

“held that ‘the ordinance [was] invalid as applied in

this case.’” B.P.J. Pet. 28a (quoting 473 U.S. at 448).

“But applying rational-basis review in a ‘case’ is not

the same as applying it to the unique circumstances

of a specific plaintiff.” Jones v. Governor of Fla., 975

F.3d 1016, 1036 (CA11 2020) (Pryor, C.J.). “After the

passage cited by the [Fourth Circuit],” Cleburne

“evaluated whether the city’s proffered reasons for

requiring a permit for a group home of people with

intellectual disabilities but not for comparable

facilities rationally reflected relevant differences

between ‘the mentally retarded as a group’ and

others.” Ibid. (citing Cleburne, 473 U.S. at 448–50).

“The Court did not focus on factors unique to the

particular disabled people involved,” ibid., and its

application as a remedial matter was appropriately

limited to the zoning permit before it. Cleburne’s

analysis—rational basis for a zoning application by

one party—is not some hidden sea change in

constitutional jurisprudence.

In sum, the as-applied intermediate scrutiny

approach finds no basis in this Court’s precedents,

which reject that theory.

C. The consequences of the as-applied theory

would be significant.

Beyond disregarding precedent, the novel asapplied theory would have significant negative

consequences. It would permit a plaintiff to demand

perfect tailoring to his situation, forcing the

government to abandon the law’s enforcement writ

large to avoid plaintiffs with often undetectable

unique circumstances. This intermediate scrutiny

reformulation would also alter vast swaths of law,

including equal protection, Fifth Amendment due

process, and speech—or else inexplicably result in

different flavors of intermediate scrutiny. Decades of

precedent would be disturbed, and intermediate

scrutiny would essentially morph into strict scrutiny,

which is supposed to be reserved for the most

inherently suspect laws.

First, the practical consequences of as-applied

intermediate scrutiny would be severe. Laws that are

facially valid—and further important government

interests like protecting girls and women from

harm—would no longer be enforced. That is because

States will be unable to predict when some plaintiff

with unique (and, as here, unapparent) circumstances

might come along and suffer a supposed as-applied

violation. And any state-run single-sex homeless

shelter, prison, or restroom could create an equal

protection violation for gender identity—as applied to

an individual. Rather than face “high-cost, high-risk

lawsuit[s],” Virginia, 518 U.S. at 597 (Scalia, J.,

dissenting), States and local governments will simply

not enforce these laws or programs, even if they are

valid as against every other person in the world.

The as-applied approach would reach beyond

gender identity and seemingly spell the end of sexseparated sports. The decisions below suggest that

“meaningful competitive athletic advantage” is the

only permissible dividing line. B.P.J. Pet. 34a; see

Hecox Pet. 42a. So consider a boy (who identifies as

male) with a disability or low hormone levels, leading

to reduced physical ability. 1 Or consider a boy who is

simply smaller or slower than average. 2 These

conditions are far more common than transgender

identification, which the Ninth Circuit estimated was

between 0.6 and 1.8% of Americans. Hecox Pet. 13a–

14a. If courts were required to do a case-by-case

analysis for every person (or small group) in every

1 For instance, around 5% of males experience delayed puberty

and thus reduced physical ability. Delayed Puberty in Boys:

Information for Parents, Am. Acad. of Pediatrics (June 9, 2015),

https://perma.cc/29M3-DSDB.

2 See, e.g., L. Sharma et al., Short Stature, Nat’l Insts. of Health

(2025), https://perma.cc/JKL8-42TU (3% of children suffer from

short stature); see generally B.P.J. Pet. 92a–93a.

sport as a matter of equal protection, many more

males with physical abilities on par with females

would presumably have to be let into girls’ sports.

Yet policies separating sports by sex protect

important state interests. Individuals protected by

those laws—here, young girls—will suffer. In places

where biological men who identify as women have

competed against biological women, these harms are

real. Young girls have lost not just individual

competitions, but the chance to compete on a fair

playing field against their peers. 3 Certainly, this is

not the “celebration” of women’s physical capabilities

that intermediate scrutiny is supposed to preserve.

Virginia, 518 U.S. at 533. Instead, the as-applied

theory would allow biological men to “denigrat[e]”

women’s “[p]hysical differences” by infiltrating

women’s sports and ultimately excluding women from

the highest levels of athletic achievement. Ibid.

The as-applied theory will also unsettle precedent.

Under that theory, many cases from this Court

discussed above would have been decided differently.

For example, this Court in Nguyen would likely have

found that the “ultimate objective” of the statute at

3 See, e.g., R. Pollina, High School Track Star Appears to Give

‘Thumbs-Down’ After She’s Pushed out of State Champs by

Transgender Competitor: ‘Cheated’, N.Y. Post (May 22, 2023),

https://perma.cc/XJH4-ZD95; W. Martin & M. Cash, Swimmer

Lia Thomas Beat 2 Olympic Medalists Amid Protests to Make

History as the First Trans Athlete to Win an NCAA Title,

Business Insider (Mar. 18, 2022), https://perma.cc/XZG2-MXTH;

E. Lips, Bearded MA ‘Trans’ HS Athlete Injures Multiple Girls;

Now Story Part of NH Debate, NH Journal (Apr. 4, 2024),

https://perma.cc/SDR8-BGNB.

issue was not furthered by enforcing it against

Nguyen, and thus the statute would have been held

unconstitutional. See 533 U.S. at 70. As discussed,

Nguyen considered a statute providing different steps

for immigrants to attain citizenship depending on

whether the unwed father or unwed mother was a

citizen. Id. at 62. The government’s asserted interests

in parent-child relationships were not implicated by

the facts in Nguyen, as the petitioner’s relation to his

citizen father was shown through a DNA test, and the

petitioner lived with his father in the United States

from ages five to 22. Id. at 57. Though Nguyen held

that the statute need not “be capable of achieving its

ultimate objective in every instance,” id. at 70, the asapplied theory would require the opposite.

Further, if this Court accepts the as-applied theory

and permits a challenger to demand a perfect fit

between a law and that challenger’s unique

circumstances, the Court would be sanctioning formerly meritless claims. As the Supreme Court has

warned, if a plaintiff can change the substantive law

by labeling a claim “as-applied,” the courts will be

plagued with “pleading games.” Bucklew v. Precythe,

587 U.S. 119, 139 (2019). While the “line between

facial and as-applied challenges can sometimes prove

amorphous,” “the label is not what matters.” Ibid.

(cleaned up). “To hold now, for the first time, that

choosing a label changes the meaning of the

Constitution would only guarantee a good deal of

litigation over labels, with lawyers on each side

seeking to classify cases to maximize their tactical

advantage. Unless increasing the delay and cost . . . is

the point of the exercise, it’s hard to see the benefit in

placing so much weight on what can be an abstruse

exercise.” Ibid. Rather than deny that reality, the

Fourth Circuit embraced it, explaining that “an asapplied challenge” “‘affects the extent to which the

invalidity of the challenged law must be

demonstrated.’” B.P.J. Pet. 29a.

Finally, what’s sauce for intermediate scrutiny is

sauce for rational basis review. As suggested by the

Fourth Circuit’s reliance on Cleburne, the as-applied

theory would revolutionize rational basis review. It

would mean that courts must consider whether the

government’s regulation of a particular person is

rationally related to a legitimate government interest.

That has never been the test. Under rational basis,

this Court has long held that “a classification neither

involving fundamental rights nor proceeding along

suspect lines cannot run afoul of the Equal Protection

Clause if there is a rational relationship between the

disparity of treatment and some legitimate

governmental purpose.” Armour v. City of

Indianapolis, Ind., 566 U.S. 673, 680 (2012) (cleaned

up). “[S]tate classifications” that are subject to

rational basis review “cannot be determined on a

person-by-person basis.” Kimel v. Fla. Bd. of Regents,

528 U.S. 62, 85–86 (2000). “Our Constitution permits

States to draw lines [for non-suspect classes] when

they have a rational basis for doing so at a class-based

level, even if it ‘is probably not true’ that those reasons

are valid in the majority of cases.” Id. at 86; see also

Gregory v. Ashcroft, 501 U.S. 452, 473 (1991)

(upholding mandatory retirement for judges while

acknowledging that “[i]t is probably not true that

most” judges suffer deterioration in old age, and “[i]t

may not be true at all”); Mass. Bd. of Retirement v.

Murgia, 427 U.S. 307, 311, 314–17 (1976) (holding

that mandatory retirement for police officers passed

rational basis review even though the challenger was

in “excellent physical and mental health” and was still

“capable of performing the duties of a uniformed

officer”).

To be sure, closer scrutiny is warranted under

intermediate scrutiny. But the question is whether

the relevant equal protection scrutiny level in an asapplied case is adjudicated by reference to the

plaintiff’s own circumstances. If intermediate

scrutiny requires that the government’s interests be

borne out in the individual case, rational basis

scrutiny logically would as well. That is true even if a

lesser interest suffices under rational basis review.

And “[n]early any statute which classifies people may

be irrational as applied in particular cases.” Jones,

975 F.3d at 1036 (quoting Beller v. Middendorf, 632

F.2d 788, 808 n.20 (CA9 1980) (Kennedy, J.)). Once

again, the as-applied theory would upend

constitutional law.

The courts below did not address these

consequences. The as-applied theory is logically

incoherent and incompatible with precedent. Its

consequences would be severe. The Court should

reject it.

D. Defenses of the as-applied theory lack

merit.

A recent academic article purports to defend an asapplied intermediate scrutiny theory of equal

protection, but what it actually defends is nothing of

the sort. See K. Eyer, As-Applied Equal Protection, 59

Harv. C.R.-C.L. L. Rev. 49 (2024). According to this

article, some precedents involving unwed fathers

suggest that plaintiffs may bring as-applied

intermediate scrutiny challenges. The article argues

that this Court has permitted “differential treatment

of non-marital fathers . . . but only insofar as the law

affords such fathers an opportunity to show that they

are similarly situated with respect to their children.”

Id. at 55–56. These cases supposedly suggest that “the

availability of an individualized method to show one’s

similarity to a favored group [is] a key feature of what

will allow a discriminatory scheme to satisfy

intermediate review.” Id. at 51.

This argument falls short in several respects. Most

of all, the line of precedents it cites opposes an asapplied theory of intermediate scrutiny. No doubt, the

Court has looked at the absence of individualized

statutory inquiry to assess the tailoring of the statute

to the asserted government interest. See, e.g., Caban

v. Mohammed, 441 U.S. 380, 394 (1979) (striking

down a categorical distinction between unwed

mothers and fathers as too broad). But that is not the

same as as-applied intermediate scrutiny, which

would ask as a matter of constitutional inquiry

whether the statute’s operation against the particular

plaintiff is substantially related to the government’s

interest. In this (senseless) inquiry, it would make no

difference how many other plaintiffs might be affected

or how broad the classification is otherwise. The Biden

Administration’s argument discussed above is an

example of invoking the categorical nature of a law to

contend that it fails intermediate scrutiny, though it

improperly focuses on a very small group; an as-

applied application of intermediate scrutiny to a

person is something different, and even worse.

Again, “[n]one of [this Court’s] gender-based

classification equal protection cases have required

that the statute under consideration must be capable

of achieving its ultimate objective in every instance.”

Nguyen, 533 U.S. at 70. A State is “entitled to protect

its interest by applying a prophylactic rule to”

“circumstances generally,” and need not “prove that

the state interests supporting the rule actually were

advanced by applying the rule in [the] particular

case.” Edge, 509 U.S. at 431.

The article’s own cases show the divergence

between the “as-applied” statutory mechanisms it

relies on and a constitutional “as-applied” inquiry. As

the article concedes, in some cases the availability of

individualized statutory inquiry did not save the

statute, while in other cases even a statute without an

individualized inquiry was upheld. See Eyer, supra,

at 59 nn.46–47; see also, e.g., Wengler v. Druggists

Mut. Ins. Co., 446 U.S. 142, 151–52 (1980) (striking

down a death-benefits law that automatically granted

benefits to widows but not widowers, even though

widowers had the individualized opportunity to show

dependency and receive benefits); Michael M. v.

Superior Ct. of Sonoma Cnty., 450 U.S. 464, 470, 475–

76 (1981) (plurality opinion) (upholding California’s

statutory rape law that categorically exempted

women from prosecution). In the latter set of cases, an

as-applied intermediate scrutiny theory would have at

least led to a different analysis, if not a different

result. And though the article relies on Cleburne,

Eyer, supra, at 64–66, that case did not involve

intermediate scrutiny and does not support the asapplied theory here for the reasons explained above—

reasons that the article does not address. See supra

pp. 15–16 (citing Jones, 975 F.3d at 1036).

Indeed, the article fails to address any of the points

above. It does not explain how its theory would not

collapse intermediate and strict scrutiny. It does not

explain why its theory would apply only to

intermediate scrutiny and not rational basis review.

It does not explain how courts would assess whether

a regulation is permissibly overbroad with respect to

one plaintiff. It does not explain why equal protection

intermediate scrutiny—the only type of intermediate

scrutiny it addresses—would be different from other

applications of intermediate scrutiny, where this

Court has rejected an as-applied analysis. And it

identifies no precedent of this Court squarely

supporting its theory, instead relying on broad

statements by the author accompanied by string-cited

footnotes that offer dubious support for those

statements. Compare Eyer, supra, at 54–59, with L.

Worrick, Rules for Thee . . . and Also for Me: Why

Courts Should Reject As-Applied Intermediate

Scrutiny, 37 Regent U. L. Rev. 131, 141–47 & n.98

(2024).

For all these reasons, the Court should reject an

as-applied theory of intermediate scrutiny.

II.

Under equal protection, “sex” is not a

subjective