Gender and School Sports: Federal Action and Legal Challenges to State Laws

Gender and School Sports: Federal Action and

Legal Challenges to State Laws

Updated September 15, 2026

Congressional Research Service

https://crsreports.congress.gov

R48448

SUMMARY

Gender and School Sports: Federal Action and

Legal Challenges to State Laws

R48448

September 15, 2026

Madeline W. Donley

Legislative Attorney

Policymakers have debated how schools should respond when transgender students (students

who are assigned one sex at birth but identify with the opposite sex) seek to use facilities or

participate in school activities consistent with their gender identities. One prominent area of

Jared P. Cole

contention is the participation of transgender athletes in school sports. Some states and local

Legislative Attorney

school districts allow student-athletes to compete on teams that align with their gender identity

(referred to in this report as “permissive” policies), while many states and localities require

students to compete on teams aligned with their sex assigned at birth (referred to as “restrictive”

policies). See, e.g., W. VA. CODE § 18-2-25d (2024). Some of these policies only prohibit

transgender women and girls (who were assigned male at birth but identify as female) from participating on teams designated

for women or girls by requiring all participants to be “biologically female,” though some policies apply to both men’s and

women’s teams. Transgender student-athletes and their parents have contested policies that require participation according to

biological sex, claiming that they discriminate on the basis of sex and/or transgender status in violation of Title IX of the

Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681, and the Equal Protection Clause of the Fourteenth

Amendment, U.S. CONST. amend. XIV, § 1. By contrast, some athletes who identify with the sex they were assigned at birth

have used these same laws to challenge policies that permit transgender students to play sports consistent with their gender

identities, arguing that such policies deprive them of equal athletic opportunities.

Title IX prohibits sex discrimination in federally funded education programs. Long-standing Title IX regulations permit sex

separation in school sports provided schools offer equal athletic opportunities. 34 C.F.R. § 106.41 (2026). On February 5,

2025, President Trump signed Executive Order 14201, “Keeping Men Out of Women’s Sports,” which, in part, orders the

Secretary of Education to enforce Title IX against “educational institutions” that allow transgender girls and women to

participate in girls’ sports. Exec. Order No. 14201, 90 Fed. Reg. 9279 (Feb. 5, 2025). The Fourteenth Amendment’s Equal

Protection Clause provides that a law may treat groups of people differently only if the government has a sufficient reason to

do so. Many laws that draw distinctions between different groups are subject to rational basis review, under which a court

will generally uphold a challenged classification if it is reasonably related to a legitimate government purpose. When

classifications are based on characteristics that have historically been used to invidiously discriminate, however, the

government must provide a more substantial justification for the law. Sex-based classifications are reviewed with an

“intermediate” level of scrutiny (as opposed to race-based classifications, which are subject to the highest level of scrutiny).

In June 2026, the Court decided West Viginia v. B.P.J. ex rel. Jackson, a case addressing West Virginia and Idaho laws

banning transgender girls from playing on women’s school sports teams. 146 S. Ct. 2356, 2367 (2026). The Court ruled that

such laws do not violate the Equal Protection Clause or Title IX. For the equal protection challenge, the Court ruled that the

laws classified on the basis of sex and therefore merited intermediate scrutiny. The Court concluded that the states satisfied

intermediate scrutiny because the laws substantially furthered their interests in safety and competitive fairness in school

sports. The Court did not rule on whether classifications turning on gender identity trigger heightened scrutiny. As to the

Title IX challenge, the Court ruled that, at least for the purposes of athletics, “sex” in Title IX’s statutory text meant

“biological sex,” and long-standing regulations allowing for separate teams based on biological sex were reasonable.

Accordingly, the Court held that state laws limiting girls’ and women’s school sports to biological females did not violate

Title IX. The Court also ruled that Bostock v. Clayton County—where the Court determined that employment discrimination

based on sexual orientation and transgender status was sex discrimination under a different statute—did not answer the

question of whether Title IX permitted athletic teams separated by biological sex. 590 U.S. 644, 651–52 (2020).

B.P.J. addressed only restrictive state laws; the Court explicitly disclaimed any opinion on the legality of permissive state

policies. During the second Trump Administration, the Department of Education and the Department of Justice have pursued

enforcement actions against states and school districts that have permissive policies, arguing that they deprive women of

equal athletic opportunities in violation of Title IX. Private plaintiffs have brought similar challenges. Litigation is ongoing in

these cases, although prior to B.P.J. at least one federal appellate court rejected a Title IX challenge to a permissive state

policy. Female Athletes United v. Ellison, 172 F.4th 1019, 1023 (8th Cir. 2026).

Congress has considered addressing the topic through legislation. For example, in January 2025, the House of

Representatives passed H.R. 28, which would restrict the participation of transgender women and girls in school sports.

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Gender and School Sports: Federal Action and Legal Challenges to State Laws

Contents

Introduction ..................................................................................................................................... 1

Policies Addressing Transgender Student-Athletes’ Participation in School Sports ....................... 2

State Laws and Local Policies ................................................................................................... 2

Sports Organizations ................................................................................................................. 3

Title IX and the Equal Protection Clause ........................................................................................ 4

Title IX of the Education Amendments of 1972 ....................................................................... 4

Title IX, Athletics, and Sex Separation ............................................................................... 5

Title VII and Bostock v. Clayton County............................................................................. 6

Biden Administration Updates to Title IX Regulations Following Bostock ....................... 7

Judicial Application of Bostock to Title IX Before B.P.J. ................................................... 8

Equal Protection Clause of the Fourteenth Amendment ......................................................... 10

Levels of Scrutiny ............................................................................................................. 10

Gender Identity and Transgender Status ........................................................................... 12

West Virginia v. B.P.J. .................................................................................................................... 14

Legal Challenges to Permissive Policies ....................................................................................... 17

Trump Administration Enforcement of Title IX Against States and Institutions with

Permissive Policies .............................................................................................................. 17

Private Challenges to Permissive Policies in Court ................................................................ 19

Considerations for Congress.......................................................................................................... 21

Tables

Table A-1. State Laws Restricting the Participation of Transgender Student-Athletes in

School Sports.............................................................................................................................. 22

Appendixes

Appendix. Relevant State Statutes ................................................................................................ 22

Contacts

Author Information........................................................................................................................ 45

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Gender and School Sports: Federal Action and Legal Challenges to State Laws

Introduction

Policymakers have deliberated over how schools should respond when transgender students

(students who are assigned one sex at birth but identify with the opposite sex) seek to use

facilities or participate in school activities consistent with their gender identities. In particular, the

participation of transgender women (who are assigned male at birth but identify as female) in

women’s sports has generated debate, raising questions of fairness in contexts ranging from the

Olympics1 to K-12 school sports teams.2 Some state athletic associations, as well as school

districts, allow students to compete on teams that align with their gender identity.3 This report

refers to these policies as “permissive” policies or laws. In contrast, many states have passed laws

that categorically ban transgender athletes, or sometimes only transgender women and girls, from

competing on K-12 and collegiate sports teams that align with their gender identities (see Table

A-1, below).4 These laws, which this report refers to as “restrictive” policies or laws, require

student-athletes to participate on teams that are consistent with their sex assigned at birth, often

referred to as “biological sex.” Proponents of restrictive laws express concern that allowing

transgender athletes, particularly transgender women, to compete on teams aligned with their

gender identity is unfair to cisgender women.5 (“Cisgender” individuals identify with the sex they

were assigned at birth.) For example, some supporters of these laws argue that male physiology

confers inherent physical benefits and that “biological females” are at a competitive disadvantage

in many sporting events when “biological males” are allowed to play on women’s teams.6

Transgender student-athletes and their parents contested restrictive policies and charges of

unfairness in several lawsuits across the country. These lawsuits claimed that such policies were

discriminatory and violated both Title IX of the Education Amendments of 1972 (Title IX)7 and

1 Graham Dunbar, Transgender Women Athletes Banned From Female Olympic Events By New IOC Policy,

ASSOCIATED PRESS (Mar. 26, 2026, at 18:11 ET), https://apnews.com/article/ioc-olympic-transgender-femaleeligibility-520cd9cee152a312767a667acf77dbc8 [https://perma.cc/AEY9-LUZF].

2 Terry Spencer, Mom of Transgender Girl Athlete Says Florida’s Investigation Has Destroyed Her Daughter’s Life,

ASSOCIATED PRESS (June 18, 2024, at 14:46 ET), https://apnews.com/article/transgender-girl-sports-floridabe36fe49a6a4457630107aa56c34dc1e [https://perma.cc/D6MZ-ECB5]; Sophie Austin and Jae Hong, Trans Athlete

Wins 2 Girls Events at California Track and Field Finals, ASSOCIATED PRESS (June 1, 2025, at 7:42 ET),

https://apnews.com/article/california-track-field-championship-transgender-athleteba0331f9222a20729291f543d53f77a8 [https://perma.cc/8SWD-EQT8].

3 See, e.g., WASH. INTERSCHOLASTIC ATHLETIC CONF., 2024–2025 HANDBOOK 38 (2024), https://assets.wiaa.com/

results/handbook/2024-25/handbook.pdf [https://perma.cc/R7XL-M2AH]; CONN. INTERSCHOLASTIC ATHLETIC CONF.,

2024–2025 Handbook 65 (2024), https://ciac.fpsports.org/resources/Resources/Handbook.pdf [https://perma.cc/E4WN89SQ]; R.I. INTERSCHOLASTIC LEAGUE, RULES AND REGULATIONS art. 3, § 3 (2024), https://www.riil.org/page/2996

[https://perma.cc/HX6A-FPEZ]; MASS. INTERSCHOLASTIC ATHLETIC ASSOC., RULES AND REGULATIONS GOVERNING

ATHLETICS, A HANDBOOK FOR PRINCIPALS AND ATHLETIC DIRECTORS, JULY 1, 2023–JUNE 30, 2025, at 31 (2024),

https://www.miaa.net/sites/default/files/2024-04/miaa-handbook-23-25.pdf [https://perma.cc/6W2V-FM42]; L.A.

UNIFIED SCH. DIST., GENDER IDENTITY AND STUDENTS – ENSURING EQUITY AND NONDISCRIMINATION 11 (2024),

https://www.lausd.org/cms/lib/CA01000043/Centricity/Domain/383/BUL6224.3%20Gender%20Identity%20and%20Students%20-%20Ensuring%20Equity%20and%20Nondiscrimination.pdf

[https://perma.cc/686N-BUV7].

4 See Table A-1.

5 See, e.g., Tara Bahrampour et al., Most Americans Oppose Trans Athletes in Female Sports, Poll Finds, WASH. POST

(June 14, 2022), https://www.washingtonpost.com/dc-md-va/2022/06/13/washington-post-umd-poll-most-americansoppose-transgender-athletes-female-sports [https://perma.cc/Y9BX-Q899].

6 See, e.g., Press Release, H. Comm. Oversight & Accountability, Hearing Wrap Up: The Biden Administration’s Title

IX Rule Change Denies Women Opportunities (Dec. 6, 2023), https://oversight.house.gov/release/hearing-wrap-up-thebiden-administrations-title-ix-rule-change-denies-women-opportunities [https://perma.cc/MG2S-5AGC].

7 20 U.S.C. §§ 1681–1689.

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the Equal Protection Clause of the Fourteenth Amendment.8 By contrast, some cisgender female

athletes have challenged permissive policies as violating these laws by depriving them of equal

athletic opportunities.9 On February 5, 2025, the Trump Administration issued Executive Order

(EO) 14201, “Keeping Men Out of Women’s Sports,” which, in part, orders the Secretary of

Education to enforce Title IX against “educational institutions” that allow transgender girls and

women to participate in girls’ sports.10 In June 2026, the Supreme Court held in West Virginia v.

B.P.J. ex rel. Jackson that state laws that base eligibility for girls’ and women’s athletics on

biological sex do not violate Title IX or the Equal Protection Clause.11

This report begins by briefly describing the range of approaches that states, school districts, and

athletic associations have adopted with respect to the participation of transgender athletes in

sports. It continues by examining the background constitutional and statutory bases that

transgender students used to challenge restrictive policies, including Title IX and the Equal

Protection Clause. The report then turns to the Supreme Court’s decision in B.P.J. Following the

discussion of the Court’s decision upholding restrictive state laws, the report examines challenges

by private plaintiffs and the federal government against permissive state policies. The report

concludes by identifying several considerations for Congress. The report is followed by a table of

state laws that regulate the participation of transgender students in school sports (see Table A-1).

Policies Addressing Transgender Student-Athletes’

Participation in School Sports

State legislatures, state athletic associations, and local school boards have passed laws and

developed policies that establish separate athletics teams based on sex. Some regulate

participation according to biological sex, while others permit transgender students to play sports

consistent with their gender identities. Restrictive laws and policies are often limited to

prohibiting “biological males” from competing in girls’ and women’s athletic activities. Athletic

governing associations have also developed rules regulating the participation of transgender

athletes. This section provides a short overview of how various authorities have generally

approached the participation of transgender athletes in sex-separated sports.

State Laws and Local Policies

States and localities have taken a range of approaches to the participation of transgender studentathletes in sports. Some states and local school boards permit transgender students to compete in

athletics consistent with their gender identities, with no particular requirements or restrictions.12

8 U.S. CONST. amend. XIV, § 1; see Libr. of Cong., Fourteenth Amendment Equal Protection and Other Rights,

CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/amendment-14 (last visited Sep. 9, 2026).

9 Soule ex rel. Stanescu v. Conn. Ass’n of Schs., 90 F.4th 34, 40 (2d Cir. 2023) (en banc).

10

Exec. Order No. 14201, 90 Fed. Reg. 9279 (Feb. 5, 2025).

11 West Virginia v. B.P.J. ex rel. Jackson, 146 S. Ct. 2356, 2367 (2026).

12 See supra note 3.

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Others allow such participation under certain conditions.13 At least twenty-seven states have

passed laws regulating participation according to biological sex.14

Sports Organizations

Athletic governing bodies have also adopted policies to determine the eligibility of transgender

athletes. These policies have changed over time. For example, between January 19, 2022, and

February 6, 2025, the National Collegiate Athletic Association (NCAA) allowed the participation

of transgender athletes to be regulated on a sport-by-sport basis.15 Under this policy, the NCAA

relied heavily on the International Olympic Committee’s (IOC’s) Framework on Fairness,

Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations. The IOC

framework states that “it must be in the remit of each sport and its governing body to determine

how an athlete may be at a disproportionate advantage against their peers, taking into

consideration the nature of each sport. The IOC is therefore not in a position to issue regulations

that define eligibility criteria for every sport, discipline or event across the very different national

jurisdictions and sports systems.”16

On February 6, 2025, the NCAA’s Participation Policy for Transgender Student-Athletes (NCAA

Policy) was updated in response to President Trump’s executive order regarding the participation

of transgender women and girls in women’s sports.17 Although Title IX does not apply to the

NCAA directly, the law does apply to most of the colleges and universities whose athletes

compete in the NCAA.18 According to the NCAA, a “clear, consistent, and uniform eligibility

standard[]” is important, and the executive order “provides a clear, national standard.”19 Under

the new NCAA Policy, transgender women student-athletes “may not compete on a women’s

team” but “may practice on the team consistent with their gender identity and receive all other

benefits applicable to student-athletes who are otherwise eligible for practice.”20 All studentathletes “may participate (practice and compete)” with a men’s team if they “meet all other

NCAA eligibility requirements,” though they must complete a medical exception process if they

are taking testosterone.21 In cases where transgender men have begun taking testosterone, they

13 See ILL. HIGH SCH. ASSOC., HANDBOOK WITH ILLUSTRATIONS, 2024–25 SCHOOL TERM 126 (2024),

https://www.ihsa.org/documents/flip/Handbook/2024-25/Handbook%2024-25.html [https://perma.cc/93AF-XLKH]

(requiring approval to participate based on consideration of individual circumstances and consideration of “[w]hether

allowing eligibility would be inconsistent with concepts of fairness in competition or present a risk of injury to the

participants”); MICH. HIGH SCH. ATHLETIC ASSOC., ELIGIBILITY OF TRANSGENDER STUDENT-ATHLETES,

https://cdn.factcheck.org/UploadedFiles/TransgenderPolicy.pdf [https://perma.cc/GZ28-5YX5] (allowing transgender

girls to participate consistent with their gender identity on a case by case basis).

14 See Table A-1.

15 Board of Governors Updates Transgender Participation Policy, NCAA (Jan. 19, 2022, at 20:41 ET),

https://www.ncaa.org/news/2022/1/19/media-center-board-of-governors-updates-transgender-participation-policy.aspx

[https://perma.cc/B2CR-TPY6].

16 IOC, IOC FRAMEWORK ON FAIRNESS, INCLUSION AND NON-DISCRIMINATION ON THE BASIS OF GENDER IDENTITY AND

SEX VARIATIONS 1 (2021), https://stillmed.olympics.com/media/Documents/Beyond-the-Games/Human-Rights/IOCFramework-Fairness-Inclusion-Non-discrimination-2021.pdf [https://perma.cc/D9CZ-8ZER].

17 See Participation Policy for Transgender Student-Athletes, NCAA (Feb. 6, 2025), https://www.ncaa.org/sports/2022/

1/27/transgender-participation-policy.aspx [https://perma.cc/V69N-Z6KW].

18 NCAA v. Smith, 525 U.S. 459 (1999).

19 See NCAA Announces Transgender Student-Athlete Participation Policy Change, NCAA (Feb. 6, 2025, at 15:11 ET),

https://www.ncaa.org/news/2025/2/6/media-center-ncaa-announces-transgender-student-athlete-participation-policychange.aspx [https://perma.cc/T385-WFFX].

20 See NCAA Policy, supra note 15.

21 Id.

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may not compete on a women’s team, though they may practice with a women’s team.22 The

NCAA Policy notes that “schools are subject to local, state and federal legislation and such

legislation supersedes the rules of the NCAA.”23

In March 2026, the IOC also altered its policies, limiting participation in women’s athletics to

biological females.24 Likewise, the U.S. Olympic and Paralympic Committee Safety Policy now

states that the Committee will work “to ensure that women have a fair and safe competition

environment consistent with Executive Order 14201.”25

Title IX and the Equal Protection Clause

As explained in more detail below, student-athletes have challenged state and local laws and

policies regarding gender and sports under the Equal Protection Clause and Title IX. In June

2026, the Supreme Court in B.P.J. upheld two restrictive state laws on both grounds, holding that

such policies do not amount to illegal sex discrimination under either the Equal Protection Clause

or Title IX.26

Title IX of the Education Amendments of 1972

Title IX prohibits discrimination “on the basis of sex” in education programs that receive federal

financial assistance.27 Title IX is primarily enforced in two ways: through private litigation in

federal court and by federal agencies that distribute funding to education programs.28 The

Department of Education (ED) distributes substantial funding to elementary, secondary, and

postsecondary institutions, and its Office for Civil Rights (OCR) plays a lead role in enforcing

Title IX.29 Courts are also often asked to interpret Title IX in various contexts, including sexual

harassment and athletics.30

22 Id.

23 Id.

24 IOC, POLICY ON THE PROTECTION OF THE FEMALE (WOMEN’S) CATEGORY IN OLYMPIC SPORT AND GUIDING

CONSIDERATIONS FOR INTERNATIONAL FEDERATIONS AND SPORTS GOVERNING BODIES (2026),

https://www.olympics.com/ioc/policy-protection-female-womens-category-in-olympic-sport [https://perma.cc/M6BNYGJV].

25 U.S. OLYMPIC AND PARALYMPIC COMM., CHIEF OF SEC. & ATHLETE SERVS., USOPC ATHLETE SAFETY POLICY 5 (June

18, 2025), https://assets.contentstack.io/v3/assets/blt9e58afd92a18a0fc/bltf456568858cc9c12/

USOPC_Athlete_Safety_Policy.pdf [https://perma.cc/2ZXB-4L67].

26 146 S. Ct. 2356 (2026).

27 20 U.S.C. § 1681(a).

28 CRS Legal Sidebar LSB11316, Enforcing the Antidiscrimination Mandates of Title VI and Title IX: Executive

Agency Options and Procedures, by Abigail A. Graber (2025). If compliance with the statute cannot be achieved by an

agency informally, the agency may make a referral to the Department of Justice for potential enforcement in court. 20

U.S.C. § 1682 (“Compliance with any requirement adopted pursuant to this section may be effected . . . by any other

means authorized by law: Provided, however, That no such action shall be taken until the department or agency

concerned has advised the appropriate person or persons of the failure to comply with the requirement and has

determined that compliance cannot be secured by voluntary means.”); 34 C.F.R. § 106.81 (2026) (incorporating the

procedural provisions of Title VI); id. § 100.8(a)(1).

29 The Attorney General, under Executive Order 12250, coordinates implementation and enforcement of Title IX across

executive agencies. Exec. Order No. 12250, 3 C.F.R. pt. 298 (1980).

30 See, e.g., Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 639 (1999). Courts must interpret

Title IX when they consider allegations of sex discrimination in the health care context as well due to the statutory

language of the Patient Protection and Affordable Care Act of 2010 (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010).

(continued...)

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The statute contains express carveouts that allow schools to make sex-based distinctions in

certain situations. For instance, Title IX allows schools to “maintain[] separate living facilities for

the different sexes.”31

Courts have treated Title IX as an exercise of Congress’s Spending Clause power.32 The Supreme

Court has characterized legislation enacted under the Spending Clause as contractual—in

exchange for funds, recipients agree to follow federal obligations.33 The Court has explained that

the “‘legitimacy of Congress’ power’ to enact Spending Clause legislation rests” on whether

recipients “‘voluntarily and knowingly’” agree to the contract’s terms.34 For Congress to impose

enforceable conditions on federal funding, requirements must be “clear” and “unambiguous[]” so

that recipients have “notice” of their obligations.35 The semi-contractual nature of legislation

enacted pursuant to the Spending Clause distinguishes it from laws resting on other sources of

constitutional authority. For example, Congress often legislates pursuant to its power to regulate

interstate commerce.36 In that context, entities do not agree to comply with conditions in

exchange for federal funding; instead, Congress imposes requirements on regulated parties

whether they agree to those requirements or not.37

Title IX, Athletics, and Sex Separation

The statutory text of Title IX does not mention athletics.38 Two years after enacting Title IX,

Congress passed the Javits Amendment, which directed the Secretary of Health, Education, and

Welfare (HEW) to promulgate Title IX regulations “which shall include with respect to

intercollegiate athletic activities reasonable provisions considering the nature of particular

sports.”39 HEW promulgated athletics regulations that went into effect in July 1975.40 Following

Section 1557 of the ACA bars discrimination in federally funded health programs “on the ground prohibited under”

Title IX. 42 U.S.C. § 18116(a).

31 20 U.S.C. § 1686. Courts have upheld Title IX regulations that permit consideration of sex in the context of athletics

and have also indicated that separating bathrooms by sex, as a general matter, is constitutionally permissible. Kelley v.

Bd. of Trs., 35 F.3d 265, 272 (7th Cir. 1994) (“To the extent that plaintiffs’ argument is that Title IX and the applicable

regulation—rather than the actions of the defendants—are unconstitutional, it is without merit. While the effect of Title

IX and the relevant regulation and policy interpretation is that institutions will sometimes consider gender when

decreasing their athletic offerings, this limited consideration of sex does not violate the Constitution.”); Cohen v.

Brown Univ., 991 F.2d 888, 901 (1st Cir. 1993); see Equity In Athletics, Inc. v. ED, 639 F.3d 91, 105 (4th Cir. 2011)

(rejecting equal protection claim against ED’s Policy Interpretation on Title IX and athletics); see also Grimm v.

Gloucester Cnty. Sch. Bd., 972 F.3d 586, 618 n.17 (4th Cir.), as amended (Aug. 28, 2020) (“Grimm does not think that

sex-separated restrooms are unconstitutional, and neither do we.”).

32 LaShonda D., 526 U.S. at 640 (stating that the Supreme Court has “repeatedly treated Title IX as legislation enacted

pursuant to Congress’ authority under the Spending Clause”). See generally CRS Report R47109, Federal Financial

Assistance and Civil Rights Requirements, by Christine J. Back and Jared P. Cole (2022).

33 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286–87 (1998); Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1, 17 (1981).

34 Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 219 (2022) (quoting Barnes v. Gorman, 536 U.S. 181,

186 (2002)).

35 Pennhurst, 451 U.S. at 17, 25.

36 See Libr. of Cong., United States v. Lopez and Interstate Commerce Clause, CONSTITUTION ANNOTATED,

https://constitution.congress.gov/browse/essay/artI-S8-C3-6-1/ALDE_00013418 (last visited Sep. 9, 2026).

37 Gebser, 524 U.S. at 286.

38 See 20 U.S.C. § 1681.

39 Education Amendments of 1974, Pub. L. No. 93-380, § 844, 88 Stat. 484, 612 (codified at 20 U.S.C. § 1681 note).

40 Nondiscrimination on Basis of Sex, 40 Fed. Reg. 24128 (June 4, 1975); West Virginia v. B.P.J. ex rel. Jackson, 146

S. Ct. 2356, 2370–71 (2026).

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the transfer of HEW’s education-related responsibilities to the newly created ED, that agency

adopted HEW’s Title IX regulations, and they remain in place today.41

Specifically, Title IX athletic regulations prohibit recipient institutions from discriminating based

on sex in “interscholastic, intercollegiate, club or intramural athletics.”42 Schools may operate

separate athletics teams based on sex where selection is premised upon competitive skill or the

activity is a contact sport.43 The regulations specify that contact sports include “boxing, wrestling,

rugby, ice hockey, football, basketball and other sports the purpose or major activity of which

involves bodily contact.”44 Overall, schools must provide equal opportunities in athletics

programs for both sexes.45 In deciding whether an institution has provided equal opportunities,

ED may consider factors outlined in the regulations, including an institution’s support for things

like coaching, equipment, scheduling, facilities, training, and publicity for each sex.46 The

regulations also provide that athletics options for students must “effectively accommodate the

interests and abilities of members of both sexes.”47

Other parts of Title IX also allow sex separation in certain contexts. The statutory text of Title IX

allows schools to maintain sex-separated living facilities.48 Likewise, long-standing Title IX

regulations allow for “separate toilet, locker room, and shower facilities” as long as they are

comparable.49

Title IX’s statutory text and regulations thus contemplate separation of the sexes in certain

circumstances, while simultaneously prohibiting sex discrimination. Neither the statute nor the

regulations address how Title IX applies to transgender people.

Title VII and Bostock v. Clayton County

Some courts’ interpretation of Title IX has been informed by jurisprudence interpreting Title VII

of the Civil Rights Act of 1964 (Title VII), which forbids discrimination “because of . . . sex” in

employment.50 In Bostock v. Clayton County, the Supreme Court ruled that sex discrimination

under Title VII includes discrimination based on sexual orientation and gender identity.51 The

41 In 1979, Congress divided HEW into ED and the Department of Health and Human Services. ED then duplicated the

Title IX regulations. McCormick ex rel. McCormick v. Sch. Dist., 370 F.3d 275, 287 (2d Cir. 2004).

42 34 C.F.R. § 106.41(a).

43 Id. § 106.41(b). The regulations provide that if a school has a team for one sex and not the other, “and athletic

opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to

try-out for the team offered unless the sport involved is a contact sport.” Id. § 106.41(b).

44

Id. § 106.41(b).

45 Id. § 106.41(c). The regulations provide that if a recipient institution awards athletic scholarships, it must “provide

reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex

participating in interscholastic or intercollegiate athletics.” Id. § 106.37(c).

46 Id. § 106.41(c)(2)–(10).

47 Id. § 106.41(c)(1).

48 20 U.S.C. § 1686.

49 34 C.F.R. § 106.33.

50 42 U.S.C. § 2000e-2(a)(1); see, e.g., Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 75 (1992) (“‘[W]hen a

supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the

basis of sex.’ We believe the same rule should apply when a teacher sexually harasses and abuses a student.” (second

alteration in original) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986))); Vengalattore v. Cornell

Univ., 36 F.4th 87, 103 (2d Cir. 2022); Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545, 564 (3d Cir. 2017); Jennings v.

Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007); Gossett v. Oklahoma ex rel. Bd. of Regents, 245 F.3d 1172, 1176

(10th Cir. 2001).

51 590 U.S. 644, 651–52 (2020).

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Court in Bostock reasoned that the phrase “because of” incorporates a “but-for” standard of

causation: a plaintiff establishes causation if an outcome would not have occurred “but-for” the

purported cause.52 The Court assumed, but did not decide, that the term “sex” in Title VII refers to

biological distinctions between females and males.53 According to the Court, even proceeding on

that assumption, an employer cannot discriminate based on sexual orientation or gender identity

without considering a person’s sex.54 If an employer fires a man for being attracted to men, but

not a woman who is also attracted to men, the employer is treating the first employee differently

because of his sex. Likewise, if an employer fires a transgender man for identifying as male, the

employer penalizes that person for traits that it would tolerate in a person assigned male at birth.55

In the Court’s view, sex is thus a but-for cause of sexual orientation and gender identity

discrimination, rendering such treatment a violation of Title VII.56

While the Supreme Court in Bostock was clear that discrimination based on sexual orientation or

transgender status is sex discrimination under Title VII, it was careful to disclaim any broader

ruling. The Court explicitly observed that its ruling did not address sex-separated bathrooms or

locker rooms under Title VII or the requirements of any other law.57 Bostock thus did not address

potential claims by transgender people in circumstances where a law bans sex discrimination but

permits certain sex separations.

As discussed below, courts and federal agencies under different administrations have disagreed

about the application of Bostock’s logic to the Title IX context.58 Title VII is predicated on

Congress’s constitutional authority to regulate interstate commerce,59 while Title IX was enacted

pursuant to the Spending Clause.60 Although the Supreme Court has sometimes drawn on Title

VII in determining the meaning of Spending Clause antidiscrimination statutes, it has also

sometimes distinguished between them based on their different underlying constitutional

authorities.61 Courts and policymakers have emphasized other differences between Title VII and

Title IX, such as the express carveouts in Title IX that permit sex separation, as well as the

difference in context between adult workplaces and schools.62

Biden Administration Updates to Title IX Regulations Following Bostock

Following Bostock, in 2024, ED updated its Title IX regulations generally and issued another

proposal (discussed below) to amend the provisions concerning athletics specifically. The updated

52 Bostock, 590 U.S. at 656.

53 Id. at 655.

54 Id. at 660.

55 Id. at 660–61.

56 Id. at 662.

57 Id. at 681.

58 See infra “Biden Administration Updates to Title IX Regulations Following Bostock.”

59 See United Steelworkers of Am. v. Weber, 443 U.S. 193, 206 n.6 (1979). The authority for damages suits against

state governments under Title VII rests on Section 5 of the Fourteenth Amendment, which allows Congress to abrogate

state sovereign immunity in certain circumstances. Fitzpatrick v. Bitzer, 427 U.S. 445, 447 (1976).

60

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998).

61 Id. at 286–87.

62 See infra “Judicial Application of Bostock to Title IX Before B.P.J.”

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regulations defined sex discrimination under Title IX to include sexual orientation and gender

identity discrimination.63 The preamble to the updated regulations relied on Bostock’s reasoning.64

The updated regulations went beyond adopting Bostock’s logic that discrimination based on

sexual orientation and transgender status is sex discrimination. They also contained a provision

specifying that, absent an exception, even in situations where Title IX permits differential

treatment or sex separation, policies that prevent individuals from participating in education

programs consistent with their gender identities violate the law.65 Thus, denying transgender

students access to the bathrooms or locker rooms consistent with their gender identities generally

would violate Title IX, according to ED’s updated regulations.66 Following legal challenges that

resulted in several preliminary injunctions against the 2024 regulations,67 a federal district court

vacated them in January 2025.68

In addition, under the Biden Administration ED issued a separate Notice of Proposed Rulemaking

(NPRM) that would have amended the agency’s Title IX regulations to address the participation

of transgender students in athletics.69 The NPRM proposed to prohibit categorical bans on

transgender students participating in sports consistent with their gender identities but to allow

restrictions that—for each grade level, sport, and level of competition—were substantially related

to an important educational objective and tailored to minimize harm to transgender students.70

The NPRM was never finalized, and ED eventually withdrew it before the Trump Administration

took office.71

Judicial Application of Bostock to Title IX Before B.P.J.

Prior to B.P.J., courts examined whether and how to apply Bostock to Title IX claims in the

context of athletics, as well as in contexts like bathroom access, sexual harassment, and in

challenges to the Biden-era Title IX regulations. Courts took different positions on whether to

extend the logic of Bostock to Title IX. Even when courts agreed that Bostock applied to Title IX

as a general matter, they sometimes disagreed on the outcome with respect to disputes in contexts

where sex separation was allowed.

For instance, at least three federal appellate courts concluded that Bostock’s logic applied to Title

IX but reached different conclusions on the outcome of that application in cases concerning

bathroom access for transgender students. The U.S. Courts of Appeals for the Fourth and Seventh

Circuits ruled that policies prohibiting transgender students from using bathrooms consistent with

their gender identities violated Title IX, even though Title IX allows for sex-separated bathrooms

63 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,

89 Fed. Reg. 33474, 33886 (Apr. 29, 2024) (to be codified at 34 C.F.R. pt. 106).

64 Id. at 33805.

65 Id. at 22887.

66 Id. at 33818.

67 See ED v. Louisiana, 603 U.S. 866, 867 (2024) (per curiam) (denying partial stays of preliminary injunctions against

the Title IX rule).

68 Tennessee v. Cardona, 762 F. Supp. 3d 615 (E.D. Ky.), as amended (Jan. 10, 2025).

69 See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial

Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams, 88 Fed. Reg. 22860 (Apr. 13, 2023)

(to be codified at 34 C.F.R. pt. 106).

70 Id. at 22891. For more on the details of this proposal, see CRS Legal Sidebar LSB10983, Transgender Athletes:

Education Department Proposes Amendment to Title IX Regulations, by Jared P. Cole (2023).

71 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance:

Sex-Related Eligibility Criteria for Male and Female Athletic Teams; Withdrawal, 89 Fed. Reg. 104936 (Dec. 26,

2024).

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and living facilities.72 The U.S. Courts of Appeals for the Ninth Circuit (Ninth Circuit) also ruled

that the logic of Bostock applied to Title IX73 but rejected a challenge to a restrictive bathroom

policy because, given Title IX’s carveouts for sex-separated bathrooms, the state did not have

clear notice when it accepted federal funding that separating bathrooms according to biological

sex violated the law.74

By comparison, the U.S. Courts of Appeals for the Eleventh Circuit (Eleventh Circuit) rejected

applying Bostock to Title IX and ruled that a school policy that separated boys’ and girls’

bathrooms according to biological sex did not violate Title IX.75 The court reasoned that the

ordinary meaning of sex in 1972 referred to biological sex. If that term included “gender

identity,” the court indicated, it would render Title IX’s carveouts for certain forms of sex

separation “meaningless.”76 Further, the court held that interpreting “sex” under Title IX to

include sexual orientation and gender identity would not meet the clear notice standard required

for Spending Clause conditions.77

On similar grounds, numerous courts also ruled that ED likely overstepped when, in 2024, it

updated its Title IX regulations to define sex discrimination to include sexual orientation and

gender identity and to require schools to largely treat students consistent with their gender

identities.78 The Eleventh Circuit reasoned that Bostock did not apply to Title IX because that case

concerned employment discrimination, not schools and children.79 As it explained in its prior

decision, the court believed that applying Bostock to Title IX would swallow the statute’s

carveouts for sex separation.80 Similarly, the U.S. Courts of Appeals for the Sixth Circuit (Sixth

Circuit) maintained a preliminary injunction against the regulations, opining that Title VII’s

definition of discrimination in the employment context did not necessarily fit with other antidiscrimination mandates and that the Spending Clause required Congress to give clear notice of

Title IX obligations (a requirement Title VII lacks).81 As mentioned previously, a federal district

court ultimately vacated the 2024 regulations in January 2025.82

In the context of Title IX challenges to state laws or school board policies restricting school sports

teams by biological sex, courts in pre-B.P.J. cases generally followed the approach to Bostock

adopted in their circuit on related topics, such as bathroom access.83 In challenges brought by

72 M.C. ex rel. A.C. v. Metro. Sch. Dist., 75 F.4th 760 (7th Cir. 2023); Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d

586, 606 (4th Cir.), as amended (Aug. 28, 2020).

73 Grabowski v. Ariz. Bd. of Regents, 69 F.4th 1110, 1116 (9th Cir. 2023); Doe v. Snyder. 28 F.4th 103, 114 (9th Cir.

2022).

74 Roe v. Critchfield, 137 F.4th 912, 926 (9th Cir. 2025).

75 Adams v. Sch. Bd of St. Johns Cnty., 57 F.4th 791, 815 (11th Cir. 2022) (en banc).

76 Id. at 813.

77 Id. at 815–16.

78 See, e.g., ED v. Louisiana, 603 U.S. 866, 867 (2024) (per curiam) (denying motions to partially stay preliminary

injunctions); Alabama v. Sec’y of Educ., No. 24-12444, 2024 WL 3981994, at *5 (11th Cir. Aug. 22, 2024); Louisiana

v. ED, No. 24-30399, 2024 WL 3452887, at *1 (5th Cir. July 17, 2024) (per curiam); Tennessee v. Cardona, No. 245588, 2024 WL 3453880, at *3 (6th Cir. July 17, 2024); see also Nondiscrimination on the Basis of Sex in Education

Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 33474, 33886 (Apr. 29, 2024) (to be

codified at 34 C.F.R. pt. 106).

79 Alabama v. U.S. Sec’y of Educ., 2024 WL 3981994, at *5.

80 Id.

81 Cardona, 2024 WL 3453880, at *2-3.

82 Tennessee v. Cardona, 762 F. Supp. 3d 615, 626–27 (E.D. Ky.), as amended (Jan. 10, 2025).

83 Compare Doe ex rel. Doe v. Hanover Cnty. Sch. Bd., No. 24CV493, 2024 WL 3850810, at *9 (E.D. Va. Aug. 16,

(continued...)

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transgender girls, successful plaintiffs also tended to be students receiving medical treatment to

block puberty.

Most notably, for instance, the U.S. Courts of Appeals for the Fourth Circuit (Fourth Circuit)

ruled that application of a restrictive state law to a transgender girl violated Title IX in B.P.J.

itself.84 In that case, the Fourth Circuit reviewed a Title IX challenge to West Virginia’s “Save

Women’s Sports Act,” which prohibits transgender girls from playing on teams consistent with

their gender identities.85 The plaintiff was a middle school transgender girl taking pubertyblocking medication who had “publicly identified as a girl since third grade.”86 As a result of her

treatment for gender dysphoria, the plaintiff “never experienced elevated levels of circulating

testosterone” and wanted to compete in cross country and track and field events.87 The Fourth

Circuit determined that, consistent with its prior ruling applying Bostock in the bathroom case

mentioned above, this law similarly discriminated on the basis of gender identity, which

amounted to sex discrimination.88 Further, according to the court, the law categorically prohibited

only transgender girls from participating on certain sports teams, depriving them of meaningful

athletic opportunities.89

Equal Protection Clause of the Fourteenth Amendment

In addition to federal antidiscrimination statutes, the Equal Protection Clause of the Fourteenth

Amendment may affect the legality of policies that address the participation of transgender

student-athletes in sports. Courts have disagreed over how equal protection principles apply in

this context, including the level of scrutiny courts should apply when reviewing challenges to

these policies. While the Supreme Court’s decision in B.P.J. provided clarity as to how courts

should review restrictive policies, the Court did not address every equal protection question that a

lower court may face when considering the legality of restrictive or permissive policies.

Levels of Scrutiny

The Equal Protection Clause provides that “no state shall . . . deny to any person within its

jurisdiction the equal protection of the laws.”90 Courts interpret this to mean that laws cannot treat

groups of people differently without a sufficient reason. Whether a governmental classification

2024) (ruling against a restrictive state law because of the precedential value of the Fourth Circuit’s decisions in Grimm

and B.P.J.), with D.N. ex rel. Jessica N. v. DeSantis, 701 F. Supp. 3d 1244, 1248 (S.D. Fla. 2023) (rejecting a challenge

to a restrictive state law because of the Eleventh Circuit’s Adams decision); L.E. ex rel. Esquivel v. Lee, 728 F. Supp.

3d 806, 839 (M.D. Tenn. 2024) (rejecting a challenge to a restrictive state law because the Sixth Circuit had foreclosed

application of Bostock’s reasoning to Title IX); see also Tirrell v. Edelblut, 748 F. Supp. 3d 19, 27–28 (D.N.H. 2024)

(observing no controlling decision on Bostock’s application to Title IX but reasoning that the First Circuit regularly

draws on Title VII cases to inform Title IX and ruling against a restrictive state law).

84 B.P.J. ex rel. Jackson v. W.Va. State Bd. of Educ., 98 F.4th 542 (4th Cir. 2024), rev’d and remanded, 146 S. Ct.

2356 (2026).

85 Id. at 556; see W. VA. CODE § 18-2-25d (2024).

86 B.P.J., 98 F.4th at 550.

87 Id. at 551, 560–61.

88 Id. at 563.

89 Id. at 563–65. The panel also reversed the district court’s grant of summary judgment for the defendants on the

plaintiff’s equal protection claim. However, the court declined to enter summary judgment for the plaintiff, instead

remanding for further evidentiary proceedings. Id. at 562.

90 U.S. CONST. amend. XIV, § 1. The Equal Protection Clause of the Fourteenth Amendment applies only to state

action by state and local governments. However, courts have held that the same principles apply to the federal

government through the Due Process Clause of the Fifth Amendment. See, e.g., Buckley v. Valeo, 424 U.S. 1, 93

(1976) (per curiam).

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survives an equal protection challenge depends on the basis for the classification (i.e., who the

law treats differently), the government’s rationale for the classification, and the fit between the

classification and the rationale.

Courts apply one of three tiers of scrutiny depending on the type of classification at issue. The

first and most deferential standard of equal protection review is rational basis, under which

courts uphold a challenged classification if it is reasonably related to a legitimate government

purpose.91 Because “most legislation classifies for one purpose or another,”92 rational basis

review acts as the default standard that courts apply to laws challenged under the Equal

Protection Clause.

Some laws classify people based on characteristics that have historically been used to invidiously

discriminate between groups.93 In some such instances, the government must provide a more

substantial justification for making that classification. Under the second tier of judicial scrutiny,

called intermediate scrutiny,94 a quasi-suspect classification95—including classifications based on

sex—must be supported by an “exceedingly persuasive justification”96 that the classification is

“substantially related” to “an important governmental objective.”97 The third tier, known as strict

scrutiny, applies to classifications, such as those based on race, that the Court has determined to

be inherently “suspect.”98 To withstand strict scrutiny, a law that involves a suspect classification

must be “narrowly tailored to further compelling governmental interests.”99

There are few suspect or quasi-suspect classifications. The Supreme Court has held that a

classification is suspect in nature only if

•

•

•

•

the group at issue has historically been subject to discrimination;

the classification is not related to the group’s ability to contribute to society;

the group is discrete with immutable characteristics; and

the group is a minority that lacks political power.100

When determining whether a trait is quasi-suspect, the Court has focused on the history of

discrimination and stereotyping against certain groups. The Court has called sex-based

classifications “quasi-suspect” because they are often based upon “outdated misconceptions” or

“loose-fitting characterizations” about the abilities of men and women.101 The Court is

particularly likely to strike down laws that, in its view, perpetuate these stereotypes. For example,

in 1984 the Court ruled in Mississippi University for Women v. Hogan that a female-only

admissions policy at a public nursing school violated the Equal Protection Clause.102 The state

91 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

92 United States v. Skrmetti, 605 U.S. 495, 509 (2025) (quoting Romer v. Evans, 517 U.S. 620, 631 (1996)).

93 Plyler v. Doe, 457 U.S. 202, 218 n.14 (1982) (“Some classifications are more likely than others to reflect deep-seated

prejudice rather than legislative rationality in pursuit of some legitimate objective.”)

94 Craig v. Boren, 429 U.S. 190, 197 (1976).

95 See Libr. of Cong., Equal Protection and Rational Basis Review Generally, CONSTITUTION ANNOTATED,

https://constitution.congress.gov/browse/essay/amdt14-S1-8-1-2/ALDE_00000817/ (last visited Sep. 9, 2026).

96 Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).

97 United States v. Virginia, 518 U.S. 515, 533 (1996).

98 See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007).

99 Grutter v. Bollinger, 539 U.S. 306, 326 (2003).

100

See, e.g., Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442–46 (1985).

101 See Craig v. Boren, 429 U.S. 190, 199 (1976).

102 Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982).

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argued that the policy remedied discrimination against women, but the Court rejected this

argument because the state failed to show that women lacked opportunities in the nursing field.103

Rather, the Court found that the school’s policy perpetuated the stereotype of nursing as a

“woman’s job.”104 Moreover, the school had a policy permitting men to audit classes, which the

Court found contradicted the state’s claim that women were harmed by having men in class.105

Therefore, the Court held that the record did not show that “excluding men from [admissions]

was necessary to reach any of [the school’s] educational goals.”106

Sex-based distinctions are subject to only intermediate, not strict, scrutiny, because the Supreme

Court has held that there are instances where the sexes are not similarly situated and distinctions

between them are therefore constitutional. In its 1981 decision Michael M. v. Superior Court, the

Court upheld a state criminal law that punished males, but not females, for statutory rape.107 The

plurality opinion accepted the state’s justification for the statute—the prevention of illegitimate

teenage pregnancies—as an important government interest.108 The plurality also held that the

statute’s sex-based punishment scheme was sufficiently related to this purpose, reasoning that

females already bear the harmful consequences of teenage pregnancy.109 Therefore, the Court held

that criminal sanctions for males alone could help balance the deterrents to teenage pregnancy

between the sexes.110

Gender Identity and Transgender Status

When a law or policy is challenged under the Equal Protection Clause for discriminating against

transgender individuals, courts must determine what level of scrutiny to apply. To do so, courts

must consider two issues:

• First, does the policy classify on the basis of sex? If so, intermediate scrutiny

presumably applies.

• Second, does the policy classify on the basis of transgender status? If so, is

transgender status a suspect or quasi-suspect classification?

• If transgender status is not a suspect or quasi-suspect classification, rational

basis scrutiny presumably applies.

• If transgender status is a suspect or quasi-suspect classification, heightened

scrutiny applies.

Once a court has identified the applicable level of scrutiny, it must determine whether the

government has supported the policy with an appropriate justification.

The Supreme Court has addressed the standard of review for laws challenged as discriminating

against transgender individuals in two instances, without deciding whether transgender status or

gender identity are suspect or quasi-suspect traits. In B.P.J., the Supreme Court held that two state

laws prohibiting transgender girls and women from playing on girls’ and women’s sports teams

103 Id. at 729.

104 Id. at 743.

105 Id. at 731.

106 Id.

107 Michael M. v. Superior Ct., 450 U.S. 464 (1981) (plurality opinion).

108

Id. at 470.

109 Id. at 472–73.

110 Id. at 473.

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differentiated on the basis of sex, but not transgender status or gender identity.111 Accordingly, the

Court applied intermediate scrutiny. In United States v. Skrmetti, the Court held that a law

banning certain medical treatments for minors with gender dysphoria differentiated on the basis

of diagnosis and age rather than sex, gender identity, or transgender status.112 There, because

neither diagnosis nor age are subject to heightened scrutiny, the Court applied rational basis

review. Because the Court did not hold in either case that the laws classified on the basis of

transgender status or gender identity, the Court did not address the level of scrutiny applicable to

policies that classify on those grounds.

In the absence of Supreme Court guidance, lower courts have disagreed over whether transgender

individuals constitute a quasi-suspect class to which heightened scrutiny applies, regardless of

whether a law that distinguishes based on gender identity is considered sex-based. The Fourth and

Ninth Circuits have determined that, regardless of context, transgender individuals are a quasisuspect class, and as a result, classifications based on gender identity trigger intermediate

scrutiny.113 In Grimm v. Gloucester County School Board, for instance, the Fourth Circuit

considered factors that have been used to determine whether a class is suspect and found that

transgender individuals constitute a minority group that has historically faced discrimination

based on their characteristics rather than their ability to contribute to society.114 The Sixth Circuit,

on the other hand, has held that neither gender identity nor transgender status are suspect

classifications, in part because neither is “definitively ascertainable at the moment of birth.”115

Prior to B.P.J., courts that addressed questions about the application of the Equal Protection

Clause to laws and policies relating to the participation of transgender students in sports

specifically sometimes turned to prior decisions addressing whether transgender individuals are a

suspect or quasi-suspect class.116 For example, the Ninth Circuit in Hecox v. Little applied circuit

precedent regarding military service when analyzing an equal protection challenge to Idaho’s

Fairness in Women’s Sports Act.117 The act (1) prohibits “students of the male sex” from playing

on “[a]thletic teams or sports designated for females, women, or girls”; (2) requires physical

examinations in the event of a dispute as to an athlete’s sex; and (3) creates a private cause of

action against a school for any student who suffers any harm due to a violation of this law.118 The

plaintiffs in Hecox were a transgender woman who intended to try out for her university’s female

track and cross country teams and a cisgender woman who played on high school women’s

varsity teams but was concerned that competitors might question her sex due to her “masculine”

111

146 S. Ct. 2356, 2378–79 (2026); see also infra “West Virginia v. B.P.J.”

112 605 U.S. 495, 517–18 (2025).

113 See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 610–13 (4th Cir. 2020) (explaining why transgender

individuals are, in the view of the Fourth Circuit, a quasi-suspect class), and Hecox v. Little, 104 F.4th 1061, 1079 (9th

Cir. 2024) as amended (June 14, 2024) (stating that the circuit considers transgender status to be “at least” a quasisuspect class), rev'd sub nom. West Virginia v. B.P.J. ex rel. Jackson, 146 S. Ct. 2356 (2026).

114 Grimm, 972 F.2d at 611–13 (citing Bowen v. Gilliard, 483 U.S. 587 (1987); Cleburne v. Cleburne Living Ctr., 473

U.S. 432 (1985)); see also supra “Equal Protection Clause of the Fourteenth Amendment” and “Levels of Scrutiny.”

115 L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 487 (6th Cir. 2023).

116 See e.g., Doe ex rel. Doe v. Hanover Cnty. Sch. Bd., No. 24cv493, 2024 WL 3850810, at *11 (E.D. Va. Aug. 16,

2024) (relying on circuit precedent applying intermediate scrutiny to policies addressing school bathroom use); D.N. ex

rel. Jessica N. v. DeSantis, 701 F. Supp. 3d 1244, 1253 (S.D. Fla. 2023) (same). But see L.E. ex rel. Esquivel, 728 F.

Supp. 3d 806, 831 (M.D. Tenn. 2024) (holding that circuit precedent regarding access to gender affirming care for

minors did not apply in challenge to restrictive sports law).

117 Hecox, 104 F.4th at 1079–80.

118 IDAHO CODE §§ 33-6203, 33-6205 (2026).

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appearance.119 The Ninth Circuit held that the plaintiffs were likely to succeed in challenging the

law as it applied to them.120 Pointing to a prior decision holding that transgender status is a quasisuspect classification in the context of military service,121 the Ninth Circuit reviewed the equal

protection claim under intermediate scrutiny. The court reasoned that the state had not provided

evidence sufficient to show that categorically banning transgender women from participating in

school sports consistent with their gender identities was substantially related to the state’s

proffered interest in equal opportunity in women’s sports.122 As discussed in more detail below,

the Supreme Court overturned Hecox on appeal in B.P.J.

West Virginia v. B.P.J.

In B.P.J., the Supreme Court ruled that state laws determining eligibility for girls’ and women’s

athletics according to biological sex did not violate Title IX or the Equal Protection Clause.123 The

decision consolidated the appeal from the Fourth Circuit in B.P.J. and the appeal from the Ninth

Circuit in Hecox, discussed above.124

Justice Kavanaugh wrote the majority opinion, first holding that Title IX and its implementing

regulations do not require schools to allow transgender girls, including students using puberty

blockers or hormone therapy, to participate on girls’ sports teams.125 The Court observed that the

statute does not explicitly address sports, but the 1974 Javits Amendment directed agency

promulgation of regulations that include “reasonable provisions considering the nature of

particular sports.”126 Regulations adopted in 1975 authorize separate athletics teams for the

sexes127 where selection is premised upon competitive skill or the activity is a contact sport.128

Overall, the regulations require schools to provide equal opportunities in athletics programs for

both sexes.129 At the threshold, the Court ruled that the meaning of the term “sex” in Title IX, the

Javits Amendment, and the 1975 regulations was biological sex; according to the Court, the

ordinary meaning of the term in the early 1970s was biological sex, not gender identity,

“particularly in the sports context.”130

The parties in B.P.J. agreed that Title IX allows for sex-separated sports teams and the prohibition

of most biological males from participating on women’s and girls’ teams.131 According to the

Court, they disagreed about whether “schools must make an exception . . . for biological males

who identify as female and have taken puberty blockers or hormones.”132 The Court concluded

119 Hecox, 104 F.4th at 1072. The plaintiffs in Hecox alleged that the Idaho law violated both Title IX and the Equal

Protection Clause.

120 Id. at 1080–81.

121 Id. at 1079 (citing Karnoski v. Trump, 926 F.3d 1180, 1200–01 (9th Cir. 2019) (per curiam)).

122 Id. at 1083–85.

123 West Virginia v. B.P.J. ex rel. Jackson, 146 S. Ct. 2356, 2367 (2026).

124 The Supreme Court rejected an argument that the challenge to Idaho’s law was now moot. Id. at 2373 n.3.

125 Id. at 2370.

126 Id. (quoting Education Amendments of 1974, Pub. L. No. 93-380, § 844, 88 Stat. 484, 612).

127 Id.

128 34 C.F.R. § 106.41(b). The regulations specify that contact sports include “boxing, wrestling, rugby, ice hockey,

football, basketball and other sports the purpose or major activity of which involves bodily contact.” Id.

129 Id. § 106.41(c).

130

B.P.J., 146 S. Ct. at 2371.

131 Id. at 2371–72.

132 Id. at 2372.

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that the statute and implementing regulations simply do not indicate there must be an exception

for such individuals.133 B.P.J. also argued that if the regulations were read to impose such a

categorical rule, then they are not “reasonable” as required by the Javits Amendment.134 The

Court rejected this argument.135 Instead, the Court held that regulations allowing for teams to be

separated on the basis of biological sex, without exceptions, are entirely reasonable given

“inherent physical differences between the sexes” in the context of sports, reducing the risk of

injury and ensuring fair competition.136

B.P.J., who had been taking puberty blockers and hormones, additionally argued that restrictive

policy limited her own athletic opportunity in violation of Title IX regulations by excluding her

“from any competitive sports teams.”137 The Court expressed sympathy for the plaintiff but held

that “the Title IX regulations guarantee ‘equal athletic opportunity[,]’” not that all students can

play on the team they desire.138 The Court also rejected the plaintiff’s argument that Bostock

supported an interpretation of Title IX that requires schools to permit transgender girls and

women to play on female sports teams.139 The Court ruled that the Title VII context of

employment is “vastly different” from school sports.140 While Title VII generally requires that

men and women be treated without regard to their sex at work, Title IX allows for separate men’s

and women’s athletic teams.141 Thus, the Court ruled, Bostock and Title VII “are not relevant in

this very different” context.142

Turning to the Equal Protection Clause, the Court began its analysis by determining that the West

Virginia and Idaho laws classified on the basis of sex in allowing for separate male and female

sports teams and restricting women’s and girls’ sports teams to “biological females.”143 Applying

intermediate scrutiny, the Court held that the states had satisfied that test: in the Court’s view, the

states had an important interest in ensuring “safety and competitive fairness,” and limiting girls’

sports to cisgender girls was substantially related to that interest.144 The Court rejected the

argument that, while the state laws might generally be permissible, they were unconstitutional as

applied to transgender girls taking puberty blockers and hormones. The plaintiffs argued that

these treatments eliminated any potential biological advantage transgender girls had over

cisgender girls, such that there was no substantial relationship between the states’ interests and

the restrictive policies as applied to them.145 In the Court’s view, a fit between a policy and a

state’s objectives may not be close enough to pass intermediate scrutiny if “a State’s interests do

not apply to an especially large subclass” governed by the policy.146 Because the Court indicated

that “biological males” generally have an athletic advantage over “biological females,” however,

the Court held that “[s]tates are not required to conduct an individual-by-individual comparison

133 Id.

134 Id.

135 Id.

136 Id.

137 Id. at 2373.

138 Id.

139 Id.

140 Id. (quoting Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 175 (2005)).

141 Id.

142 Id.

143 Id. at 2374.

144

Id. at 2374–75.

145 Id. at 2377.

146 Id.

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of the physical athletic capabilities of all biological males in order to satisfy intermediate

scrutiny,” regardless of an athlete’s gender identity.147 The Court also stated that it would be “an

almost impossible task” for courts to determine, case-by-case, whether the abilities of a

transgender athlete on hormones and puberty blockers were more like those of a biological male

or female, and that states and schools were better equipped to draw an appropriate line.148

The Court also rejected the argument that the state laws unconstitutionally discriminated based on

transgender status, reasoning that the laws at issue in B.P.J. classified based on biological sex

rather than gender identity or transgender status.149 By way of comparison, the Court explained

that if a school had a co-ed sports team but excluded all transgender students from the team, that

would be a classification based on gender identity.150 Given its conclusion that the West Virginia

and Idaho laws did not classify on the basis of gender identity or transgender status, the Court

declined to decide what standard of review would apply to such classifications.151

The primary partial dissent, authored by Justice Sotomayor, disagreed with the majority’s equal

protection analysis.152 The dissent stated that “a sex classification violates equal protection when

there is an incongruity between the sex classification in general and its application to a discrete

subclass.”153 Justice Sotomayor explained that the Court had found laws to be overbroad, and thus

fail intermediate scrutiny, when they did not serve a state’s interest as applied to a particular

subclass.154 For example, Justice Sotomayor pointed to two cases regarding a state law giving

unwed mothers, but not unwed fathers, the authority to veto adoption of a child. The state had

justified the law by stating that unwed mothers were more likely than unwed fathers to have a

close relationship with their child and were thus easier to locate. In those cases, the Court held

that, given this justification, the law was overbroad when applied to fathers who had a close

relationship with their children155 but not when applied to absent fathers.156 Justice Sotomayor

argued that in light of this precedent, the Court should have determined whether the states’

justifications in B.P.J. were appropriate when applied to the plaintiffs’ subclass of “transgender

girls who have never experienced an endogenous puberty and who receive gender-affirming

treatment from doing the same.”157 Justice Sotomayor also interpreted the Court’s intermediate

scrutiny precedent to require it to analyze the “nature of the burdens imposed” on the subclass to

achieve the state’s objective.158 In her view, an overbroad policy may be permissible if the burden

imposed on a discrete subclass is “minimal,” but it may also indicate that the state made

147 Id.

148 Id. at 2378.

149 Id.

150 Id. at 2378–2379.

151 Id. at 2379. Justice Thomas wrote separately to state his view that transgender status does not constitute a suspect

class. Id. at 2383 (Thomas, J., concurring). In dissent, Justice Sotomayor proffered her view that transgender status

constitutes a quasi-suspect class in its own right. Id. at 2389 n.3 (Sotomayor, J., concurring in part and dissenting in

part).

152 The dissenting Justices concurred with the majority’s conclusion that the restrictive laws at issue did not violate

Title IX, reasoning that the respondents did not dispute that “sex” means “biological sex” under Title IX or its

regulations. B.P.J., 146 S. Ct. at 2401–02 (Sotomayor, J., concurring in part and dissenting in part). Because that issue

was conceded, the dissent would have assumed without deciding that “sex” is equivalent to “biological sex” under Title

IX and its regulations. Id. at 2401 n.14.

153 Id. at 2391.

154 Id.

155 Caban v. Mohammed, 441 U.S. 380 (1979).

156

Lehr v. Robertson, 463 U.S. 248 (1983).

157 B.P.J., 146 S. Ct. at 2392 (Sotomayor, J., concurring in part and dissenting in part).

158 Id. at 2392.

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discriminatory generalizations if the subclass could be exempted without “unnecessarily

jeopardiz[ing]” the state’s interest.159 Because “it matters if B.P.J. is right” under that analysis, the

dissent would have allowed the district court to address the factual questions about the physical

abilities of this subclass before reaching a conclusion on the merits.160

Legal Challenges to Permissive Policies

Some states allow all or some transgender athletes to compete in sports consistent with their

gender identities. The Supreme Court’s decision in B.P.J. did not resolve whether such permissive

athletics policies violate Title IX or the Equal Protection Clause. The Court explicitly observed

that its decision did not address the validity of state policies that allow transgender athletes to

participate in sports consistent with their gender identities.161 Legal challenges to some

permissive policies are ongoing in the lower courts, with some plaintiff-athletes arguing that they

violate Title IX and/or the Equal Protection Clause by reducing the odds of success for cisgender

women.162 These plaintiffs typically argue that biological males have inherent physical

advantages over biological females, that transgender women retain those advantages regardless of

gender-affirming treatments, and that allowing biological males into spaces designated for

females is inherently harmful. The Trump Administration has also initiated investigations and

brought lawsuits against states with permissive policies for transgender athletes.

Trump Administration Enforcement of Title IX Against States and

Institutions with Permissive Policies

As mentioned above, on February 5, 2025, the Trump Administration issued an EO directing the

Secretary of Education to prioritize enforcement of Title IX against “educational institutions” that

allow transgender girls and women to participate in girls’ sports.163 The order also adopts the

definitions from another EO, “Defending Women from Gender Ideology Extremism and

Restoring Biological Truth to the Federal Government,” which defines sex to mean “an

individual’s immutable biological classification as either male or female.”164 That EO also directs

the Attorney General to issue guidance to agencies to “correct the [prior Administration’s]

misapplication of the Supreme Court’s decision in Bostock . . . to sex-based distinctions in agency

activities.”165

The Trump Administration has initiated Title IX investigations into various educational entities

with policies that allow transgender athletes to compete in sports consistent with their gender

identities.166 Other federal agencies that distribute federal financial assistance to education

programs have conducted compliance reviews on the same basis.167

159 Id. at 2392–95.

160 Id. at 2394, 2400.

161 Id. at 2367 n.1.

162 See infra “Private Challenges to Permissive Policies in Court.”

163 Exec. Order No. 14201, 90 Fed. Reg. 9279 (Feb. 5, 2025).

164 Exec. Order No. 14168, 90 Fed. Reg. 8615 (Jan. 30, 2025).

165 Id.

166 President Trump’s First 100 Days: Education in America, ED, https://www.ed.gov/preview-link/node/7799/

e78ad0c8-18ed-44cb-bd91-504a8ebd61bf [https://perma.cc/E8CC-CN3K] (last visited July 18, 2025).

167 Notice of Compliance Review, DO-25-610531-RV-CRR, from Anthony F. Archeval, Acting Dir., OCR, Dep’t of

(continued...)

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Some educational entities have rejected the Administration’s position on Title IX and transgender

athletes, and some of these disputes are now playing out in courts. On April 2, 2025, the U.S.

Department of Agriculture (USDA) issued a letter to the governor of Maine announcing a freeze

on certain funding on the grounds that the state’s permissive policy for transgender girls

participating in athletics violated Title IX.168 It appears that USDA froze certain funds relating to

school meals and child nutrition programs. Maine sued, and a federal district court issued a

temporary restraining order (TRO) against the agency, ruling that USDA’s actions violated Title

IX’s enforcement requirements.169 It observed that USDA did not provide the notice and hearing

before termination of funds that the statute requires.170 Following the TRO, the parties settled;

under the settlement terms, USDA agreed to refrain from freezing the state’s access to funding

based on an alleged Title IX violation unless USDA follows the procedures required under the

statute and applicable regulations.171

In addition, both the Department of Health and Human Services and ED notified Maine’s

Department of Education (MDOE) of Title IX compliance reviews based on the state’s permissive

policy.172 Both federal agencies subsequently notified the state that it was out of compliance with

Title IX and proposed resolution agreements.173 The agencies referred the matter to the

Department of Justice (DOJ) after, they said, they were unable to obtain compliance through the

informal process.174 DOJ sued MDOE in federal district court, arguing that the state’s athletics

policy “den[ies] girls the opportunity to compete in student sports on a level playing field in

which they have the same opportunities as boys” in violation of Title IX.175 According to DOJ,

the state’s policy “forces girls to compete against boys—despite the real physiological differences

between the sexes,” which denies equal athletic opportunities to girls.176 The case is currently

pending.

ED OCR also concluded a Title IX investigation into the California Department of Education

(CDE) and the California Interscholastic Federation (CIF).177 OCR decided that both entities are

violating Title IX by “allowing males in girls’ sports.”178 The agency issued a proposed resolution

Health and Human Servs. (Feb. 21, 2025), https://storage.courtlistener.com/recap/gov.uscourts.med.67828/

gov.uscourts.med.67828.1.2.pdf [https://perma.cc/M4KJ-8CVT]; Notice of Compliance Review from U.S. Dep’t of

Agriculture (Feb. 22, 2025), https://www.usda.gov/sites/default/files/documents/maine-notice-of-compliance.pdf

[https://perma.cc/XP3M-T3QY].

168 Letter from Secretary of the Department of Agriculture Brooke Rollins to Governor of Maine Janet Mills (Apr. 2,

2025), https://storage.courtlistener.com/recap/gov.uscourts.med.67828/gov.uscourts.med.67828.1.14.pdf

[https://perma.cc/2JFT-NT8A].

169 Maine v. USDA, 778 F. Supp. 3d 200, 238–39 (D. Me. 2025).

170 Id. at 229.

171 Settlement Agreement, Maine v. USDA, No. 25-cv-00131 (D. Me. May 2, 2025), https://mainemorningstar.com/wpcontent/uploads/2025/05/Settlement-Agreement-executed.pdf [https://perma.cc/L6T8-AWJM].

172 Complaint at 26, United States v. MDOE, 25-cv-00173 (D. Me. Apr. 16, 2025), Dkt. No. 1.

173 Id. at 26–27.

174 Id.

175 Id. at 2.

176 Id. at 3.

177 Press Release, U.S. Department of Education Finds California Department of Education and California

Interscholastic Federation in Violation of Title IX, ED (June 25, 2025), https://www.ed.gov/about/news/press-release/

us-department-of-education-finds-california-department-of-education-and-california-interscholastic-federationviolation-of-title-ix [https://perma.cc/BU77-E9Y4].

178 Id.

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agreement, which the state rejected.179 DOJ sued CDE and CIF for violating Title IX.180 The

Administration has similarly sued Minnesota on the same basis.181

In 2026, a district court dismissed DOJ’s Title IX lawsuit against California for its permissive

policy.182 DOJ argued that the state policy violated Title IX because the law requires schools to

determine eligibility for girls’ teams and facilities according to biological sex.183 The district court

observed that Title IX allows schools to separate teams based on sex and, according to the

decision in B.P.J., allows schools to specifically limit girls’ teams to biological females.184

However, the court reasoned there is no requirement in Title IX or its implementing regulations

that schools must exclude transgender girls from girls’ teams.185 According to the court, the state

thus did not have clear notice that Title IX contained any such requirement and the Spending

Clause barred DOJ from enforcing it.186 Finally, at least one institution has entered into a

resolution agreement with OCR to resolve a noncompliance finding. The University of

Pennsylvania committed to, among other things, issuing a public statement specifying that “male

students” may not compete in athletics programs restricted to “women.”187

Private Challenges to Permissive Policies in Court

In addition to the enforcement actions against permissive policies pursued by the government

described above, private plaintiffs have challenged permissive policies in court. Two federal

courts of appeals have weighed in on whether allowing transgender women to participate in

women’s sports causes any legally cognizable harm to biological women competing in the same

sports. In Soule ex rel. Stanescu v. Connecticut Association of Schools, four cisgender members of

a high school girls’ track team brought a Title IX challenge against the Connecticut

Interscholastic Athletic Conference’s policy of allowing students to participate on sports teams

consistent with their gender identities, arguing that the policy limited their ability to succeed in

athletics or obtain the benefits of excellent athletic ability, like scholarships.188 The studentplaintiffs sought monetary damages and to remove records set by transgender girls who had

179 Soumya Karlamangla, California Rejects Trump Demand to Remove Trans Athletes from Women’s Sports, N.Y.

Times (July 8, 2025), https://www.nytimes.com/2025/07/08/us/politics/trump-transgender-athletes-california.html.

180 Complaint, United States v. Cal. Interscholastic Fed’n, No. 25-cv-01485 (C.D. Cal. July 9, 2025).

181 Complaint, United States v. Minn. Dep’t of Educ. & State High Sch. League, No. 26-cv-02078 (D. Minn. Mar. 30,

2026).

182 United States v. Cal. Interscholastic Fed., No. 25-CV-01485, 2026 WL 2575930, at *1 (C.D. Cal. Aug. 31, 2026).

See also Minnesota v. Trump, No. 25-CV-1608, 2026 WL 2295012, at *15 (D. Minn. Aug. 10, 2026) (allowing the

state’s Spending Clause claim against the Trump Administration’s Executive Order and letters taking the position that

Title IX requires barring transgender women and girls from participating in sports and using locker rooms and

restrooms consistent with their gender identity); Brown v. Wash. Interscholastic Activ. Assoc., No. 26-CV-05616, 2026

WL 2525463, at *15 (W.D. Wash. Aug. 23, 2026) (“The Court is persuaded by the Eighth Circuit’s decision in FAU,

which addressed a challenge to transgender athlete participation in high school sports on substantially similar

grounds.”); id. at *26 (“Accordingly, the Court concludes Plaintiffs have not met their burden to show that Defendants

had clear notice of the conditions and potential for liability undergirding their acceptance of Title IX funding.”), appeal

docketed, No. 26-5488 (9th Cir. Aug. 25, 2026).

183 Cal. Interscholastic Fed., 2026 WL 2575930, at *1.

184 Id. at *7.

185 Id.

186 Id. at *1.

187 Resolution Agreement between University of Pennsylvania and Department of Education’s Office for Civil Rights,

OCR Investigation No. 03256901 (June 30, 2025), https://ocrcas.ed.gov/sites/default/files/ocr-letters-and-agreements/

03256901-b.pdf [https://perma.cc/3R8D-VXWG].

188 Soule ex rel. Stanescu v. Conn. Ass’n of Schs., 90 F.4th 34 (2d Cir. 2023) (en banc).

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participated in the conference.189 The district court initially dismissed the case, finding that the

plaintiffs lacked standing, or were not eligible to seek relief in federal court.190 The court held that

the plaintiffs did not have standing because the claims, in its view, were based on speculation,191

and because the monetary damages sought were unavailable under Spending Clause

jurisprudence. Moreover, the district court reasoned, Spending Clause legislation must give

federal grantees “clear notice” of all conditions to those grants, and the conference did not have

clear notice that its policy potentially violated Title IX.192 A panel of the U.S. Court of Appeals

for the Second Circuit (Second Circuit) affirmed on the standing issue.193 The en banc Second

Circuit changed course in December 2023 and held that the plaintiffs did have standing to

challenge the policy.194 The court said that, assuming that allowing transgender girls to race on

girls’ track teams violated Title IX, it was plausible that changing public athletic records could

provide relief for the plaintiffs.195 On remand, in November 2024, the district court incorporated

the Second Circuit’s reasoning and determined both that the plaintiffs’ allegations were sufficient

to claim discrimination under Title IX and that such a claim was not precluded by the Spending

Clause notice requirement.196 A final decision on the merits has not yet been made.

The U.S. Courts of Appeals for the Eighth Circuit (Eighth Circuit) also ruled that plaintiffs had

standing to challenge a state sports league’s permissive policy but ultimately rejected the Title IX

challenge.197 In that case, plaintiffs sued Minesota state and independent school district board

officials, arguing that enforcement of a permissive policy by allowing a transgender girl to

compete in varsity girls’ softball violated Title IX.198 The district court dismissed a motion for a

preliminary injunction against the policy, and the Eighth Circuit affirmed.199 The Eighth Circuit

reasoned that under binding Supreme Court precedent, Title IX provides a private right of action

only for claims of intentional discrimination, not for disparate impact.200 The Eighth Circuit

agreed with the district court that the plaintiffs had not alleged intentional discrimination by the

state—the plaintiffs conceded that the policy applied equally to men and women and alleged only

discriminatory impacts on female athletes.201 The panel also concluded that the plaintiffs failed to

allege an inference of discriminatory intent in adopting the policy, which could potentially allow

a Title IX claim to go forward.202 The plaintiffs failed to allege that the league enforced the policy

189 Id.

190 Soule ex rel. Stanescu v. Conn. Ass’n of Schs., No. 20-cv-00201, 2021 WL 1617206, at *10 (D. Conn. Apr. 25,

2021), aff’d, 57 F.4th 43 (2d Cir. 2022), and vacated, 90 F.4th 34 (2d Cir. 2023).

191 Id. at *5 (stating that the possibility that transgender students may attempt to join a sports team is insufficient to

develop a legally cognizable injury).

192 Id. at *8–10; see Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).

193 Soule ex rel. Stanescu v. Conn. Ass’n of Schs., 57 F.4th 43 (2d Cir. 2022).

194 Soule, 90 F.4th at 45–51.

195 Id. at 48.

196 Soule ex rel. Stanescu v. Conn. Ass’n of Schs., No. 20-cv-00201, 2024 WL 4680533, at *18 (D. Conn. Nov. 5,

2024).

197 Female Athletes United v. Ellison, 172 F.4th 1019, 1023 (8th Cir. 2026).

198 Id.

199 Id.

200 Id. at 1027–28 (citing Alexander v. Sandoval, 532 U.S. 275, 281 (2001); and then Cannon v. Univ. of Chi., 441 U.S.

677, 694–96 (1979)).

201 Id. at 1028.

202 Id. at 1028–29.

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because of its impact on girls’ sports or that the league disregarded concerns about the potential

negative effect of transgender girls’ participation on female athletics.203

Considerations for Congress

The legal landscape with respect to the participation of transgender student-athletes in sports is in

flux. Prior to B.P.J., some courts had ruled for plaintiffs challenging restrictive laws or policies

where there was a prior controlling circuit court decision holding that preventing transgender

individuals from accessing services consistent with their gender identities is discriminatory.

Courts ruling for plaintiffs challenging restrictive athletics policies also tended to bar the policies

from applying to the particular plaintiffs rather than striking them down entirely. The Supreme

Court in B.P.J., however, held that restrictive policies are generally permissible under both Title

IX and the Equal Protection Clause, and it rejected an “as applied” challenge seeking to invalidate

a restrictive policy only as to the plaintiffs in the case. Nevertheless, that decision does not speak

to the legality of permissive laws and policies. The Trump Administration has made clear its

stance that permissive policies run afoul of Title IX,204 though at least one circuit court has

disagreed. Other legal challenges to permissive policies are still playing out.

Congress has several options if it seeks to address this subject. It may restrict participation in

school sports based on the biological sex of athletes. For instance, the House passed H.R. 28, the

Protection of Women and Girls in Sports Act of 2025, in January 2025.205 That bill would amend

Title IX by making it illegal for educational institutions that take federal funds to permit “a

person whose sex is male,” defined “solely on a person’s reproductive biology and genetics at

birth,” to participate in athletics programs designated for women or girls.206 The bill would allow

“males to train or practice” with programs designated for women or girls subject to certain

conditions.207 The Supreme Court’s decision in B.P.J. indicates that such legislation would likely

survive a challenge under the Equal Protection Clause.

Congress could also amend Title IX to require funding recipients to allow students to participate

on teams that match their gender identities. Congress could also pass legislation taking an

approach similar to ED’s now-withdrawn proposed rule, which would have allowed some

limitations on the participation of certain student-athletes but would not have allowed categorical

bans.208 Congress could provide for different rules for athletics at K-12 and intercollegiate levels,

or draw other distinctions, if desired.

Congress could also amend Title IX to leave these decisions entirely in funding recipients’ hands,

by clarifying that neither permissive nor restrictive policies violate the law.

203 Id.

204 See supra “Trump Administration Enforcement of Title IX Against States and Institutions with Permissive

Policies.”

205 H.R. 28, 119th Cong. (as passed by House, Jan. 14, 2025).

206

Id.

207 Id.

208 See supra “Biden Administration Updates to Title IX Regulations Following Bostock.”

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Appendix. Relevant State Statutes

Table A-1. State Laws Restricting the Participation of Transgender Student-Athletes in School Sports

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

AL

ALA. CODE Yes

§ 16-1-52

(2026)

Yes

Yes

Yes

Yes

Partial

(b)(1) Except as provided in subsection (c), a public K-12 school may not participate in, sponsor, or

provide coaching staff for interscholastic athletic events within this state that are either scheduled by

or conducted under the authority of any athletic association of the state that permits or allows

participation in athletic events within the state conducted exclusively for males by any individual who

is not a biological male or participation in athletic events within the state conducted exclusively for

females by any individual who is not a biological female.

(2) A public K-12 school may not allow a biological female to participate on a male team if there is

a female team in a sport. A public K-12 school may not allow a biological male to participate on a

female team.

(c) Subsection (b) does not apply to athletic events at which both biological males and biological

females are permitted or allowed to participate.

(d)(1) An intercollegiate athletic team or sport sponsored by a public two-year or four-year

institution of higher education that is designated for females, women, or girls shall not be open to a

biological male.

(2) An intercollegiate athletic team or sport sponsored by a public two-year or four-year

institution of higher education that is designated for males, men, or boys shall not be open to a

biological female.

(3) Nothing in this subsection shall be construed to restrict the eligibility of any student to

participate on any intercollegiate or intramural athletic team or sport designated as coed or

mixed.

AK

ALASKA

No

ADMIN

CODE tit.

4, § 06.115

(b)(5)(D)

(2026)

No

Yes

No

Yes

No

(b) A school or school district may join and, to the extent authorized by its budget, may pay dues to

the Alaska School Activities Association, Inc., or any other voluntary, nonprofit association whose

purpose is to administer and promote interscholastic activities in Alaska so long as the association

...

(5) administers interscholastic activities in a manner that

...

CRS-22

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

(D) ensures fairness, safety, and equal opportunity for female students in high school athletics by

providing, in consideration of responses to a school survey under 4 AAC 06.520, that if a separate

high school athletics team is established for female students, participation shall be limited to

females who were assigned female at birth; in this subparagraph, “athletics” means competitive or

contact sports, as determined by the association. . . .

AZ

ARIZ. REV. Yes

STAT. ANN.

§ 15120.02

(2026)

CRS-23

Yes

Yes

Yes

Yes

No

A. Beginning on January 1, 2027, each school that sponsors an interscholastic or intramural athletic

team and each athletic association that sponsors an interscholastic or intramural sport shall expressly

designate the athletic team or sport as one of the following, based on the sex of the athletes who

participate on the athletic team or in the sport:

1. “Males,” “men” or “boys.”

2. “Females,” “women” or “girls.”

3. “Coeducational” or “mixed.”

B. A school or athletic association may not open any interscholastic or intramural athletic team or

sport that is designated for females, women or girls to athletes of the male sex.

C. This section does not restrict the eligibility of any athlete to participate in any interscholastic or

intramural athletic team or sport that is aligned with the athlete's sex or that is designated as

“coeducational” or “mixed.”

D. Beginning on January 1, 2027, if a school or athletic association provides and maintains restrooms,

locker rooms, shower rooms or other private spaces that are integral to athletic engagement, the

school or athletic association, including employees of the school or athletic association, may not

authorize any individual to use a restroom, locker room, shower room or other private space that is

not designated for that individual's sex.

...

J. For the purposes of this section:

1. “Athlete” means an individual, including a student, who participates in any interscholastic or

intramural athletic team or sport.

2. “Athletic association” means a league, corporation, association or organization that has a

primary purpose of sponsoring or administering extracurricular athletic contests or competitions.

3. School” means either:

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

(a). A public or private school that provides instruction in any combination of kindergarten

programs or grades one through twelve.

(b). An institution of higher education.

AR

ARK. CODE Yes

ANN. §§ 61-107, 16130-103,

16-130-104

(West

2026)

CRS-24

Yes

Yes

Yes

Yes

No

ARK. CODE ANN. § 6-1-107

...

(b)(1) As used in this section, “school” means:

(A) A public elementary or secondary school;

(B) An open-enrollment public charter school; and

(C) A public two-year or four-year institution of higher education.

(2) “School” includes a private educational institution whose interscholastic, intercollegiate,

intramural, or club athletic teams or sports compete against a public school.

(c) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by

a school shall be expressly designated as one (1) of the following based on biological sex:

(1) “Male,” “men’s,” or “boys”;

(2)(A) “Female,” “women's,” or “girls.”

(B) An interscholastic, intercollegiate, intramural, or club athletic team or sport that is

expressly designated for females, women, or girls shall not be open to students of the male

sex; or

(3) “Coed” or “mixed.”

...

ARK. CODE ANN. § 16-130-103

(1) “Covered entity” means:

(A) An elementary school, high school, secondary school, or postsecondary school that is located

in Arkansas and receives state funds;

(B) Any other school or institution that is located in Arkansas whose students or teams compete

in interscholastic, intercollegiate, intramural, or club athletic teams or sports against an entity

defined in subdivision (1)(A) of this section; and

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

(C) An entity that receives membership fees or any other funds from an entity defined in

subdivision (1)(A) or subdivision (1)(B) of this section; and

(2) “Sex” means a person's immutable biological sex as objectively determined by anatomy and

genetics existing at the time of birth.

ARK. CODE ANN. § 16-130-104

(a) Any interscholastic, intercollegiate, intramural, or club athletic teams or sports that are

sponsored by a covered entity shall be expressly designated for one (1) of the following groups based

on sex:

(1) Males, men, or boys;

(2) Females, women, or girls; or

(3) Coed or mixed.

(b) Members of the male sex are prohibited from an interscholastic, intercollegiate, intramural, or

club athletic team or sport that is expressly designated for females, women, or girls.

FL

FLA. STAT. Yes

§ 1006.205

(2026)

Yes

Yes

Yes

Yes

No

(3) Designation of athletic teams or sports.—

(a) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored

by a public secondary school or public postsecondary institution must be expressly designated as

one of the following based on the biological sex at birth of team members:

1. Males, men, or boys;

2. Females, women, or girls; or

3. Coed or mixed, including both males and females.

(b) Athletic teams or sports designated for males, men, or boys may be open to students of the

female sex.

(c) Athletic teams or sports designated for females, women, or girls may not be open to students

of the male sex.

(d) For purposes of this section, a statement of a student's biological sex on the student's official

birth certificate is considered to have correctly stated the student's biological sex at birth if the

statement was filed at or near the time of the student's birth. . . .

GA

GA. CODE No

ANN. § 20-

Partiala Yes

No

Yes

Partialb

(c)(1) No high school which receives funding under this article shall participate in, sponsor, or

provide coaching staff for interscholastic sports events which are conducted under the authority of,

CRS-25

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

2-316

(West

2026)

Excerpted Text

conducted under the rules of, or scheduled by any athletic association unless the athletic association

complies with the provisions of this subsection by having a charter, bylaws, and other governing

documents which provide for governance and operational oversight by an executive oversight

committee as follows:

...

(E) The authority and duties of the executive oversight committee shall include:

...

(v) If the athletic association determines that it is necessary and appropriate to prohibit

students whose gender is male from participating in athletic events that are designated for

students whose gender is female, then the athletic association may adopt a policy to that

effect; provided, however, that such policy shall be applied to all of the athletic association’s

participating public high schools; and. . .

ID

IDAHO

Yes

CODE ANN.

§ 33-6203

(West

2026)

Yes

Yes

Yes

Yes

No

(1) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by

a public primary or secondary school, a public institution of higher education, or any school or

institution whose students or teams compete against a public school or institution of higher

education shall be expressly designated as one (1) of the following based on biological sex:

(a) Males, men, or boys;

(b) Females, women, or girls; or

(c) Coed or mixed.

(2) Athletic teams or sports designated for females, women, or girls shall not be open to students of

the male sex. . . .

IN

IND. CODE Yes

§§ 20-3313-4, 2118-13.5-2

(2026)

Yes

Yes

Yes

Yes

No

IND. CODE § 20-33-13-4

(a) A school corporation, public school, nonpublic school, or association that organizes, sanctions, or

sponsors an athletic team or sport described in section 1 of this chapter shall expressly designate the

athletic team or sport as one (1) of the following:

(1) A male, men’s, or boys' team or sport.

(2) A female, women's, or girls' team or sport.

(3) A coeducational or mixed team or sport.

CRS-26

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

(b) A male, based on a student's biological sex at birth in accordance with the student's genetics and

reproductive biology, may not participate on an athletic team or sport designated under this section

as being a female, women's, or girls' athletic team or sport. . . .

IND. CODE § 21-18-13.5-2

(a) A state educational institution or private postsecondary educational institution that organizes,

sanctions, or sponsors an athletic team or sport described in section 1 of this chapter shall expressly

designate the athletic team or sport as one (1) of the following:

(1) A male, men's, or boys' team or sport.

(2) A female, women's, or girls' team or sport.

(3) A coeducational or mixed team or sport.

(b) A male, based on a student's biological sex at birth in accordance with the student's genetics and

reproductive biology, may not participate on an athletic team or sport designated under this section

as being a female, women's, or girls' athletic team or sport.

IA

IOWA

Yes

CODE

§§ 2611.1,

2611.2

(2026)

CRS-27

Yes

Yes

Yes

Yes

No

IOWA CODE § 261I.1

...

3. “Sex” means a person's biological sex as either female or male. The sex listed on a student's

official birth certificate or certificate issued upon adoption may be relied upon if the certificate was

issued at or near the time of the student's birth.

...

IOWA CODE § 261I.2

1. a. An interscholastic athletic team, sport, or athletic event that is sponsored or sanctioned by an

educational institution or organization must be designated as one of the following, based on the sex

at birth of the participating students:

(1) Females, women, or girls.

(2) Males, men, or boys.

(3) Coeducational or mixed.

b. Only female students, based on their sex, may participate in any team, sport, or athletic event

designated as being for females, women, or girls. . . .

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

KS

KAN. STAT. Yes

ANN. § 605603

(West

2026)

Yes

Yes

Yes

Yes

No

(a) Interscholastic, intercollegiate, intramural or club athletic teams or sports that are sponsored by a

public educational entity or any school or private postsecondary educational institution whose

students or teams compete against a public educational entity shall be expressly designated as one of

the following based on biological sex:

(1) Males, men or boys;

(2) females, women or girls; or

(3) coed or mixed.

(b) Athletic teams or sports designated for females, women or girls shall not be open to students of

the male sex.

(c)(1) The Kansas state high school activities association shall adopt rules and regulations for its

member schools to implement the provisions of this section.

(2) The state board of regents and the governing body for each municipal university, community

college and technical college shall adopt rules and regulations for the postsecondary educational

institutions governed by each such entity, respectively, to implement the provisions of this

section.

KY

KY. REV.

Yes

STAT. ANN.

§§ 156.070,

164.2813

(West

2026)

Yes

Yes

Yes

Yes

No

KY. REV. STAT. ANN. § 156.070

...

(g) The state board or any agency designated by the state board to manage interscholastic athletics

shall promulgate administrative regulations or bylaws that provide that:

1. A member school shall designate all athletic teams, activities, and sports for students in grades

six (6) through twelve (12) as one (1) of the following categories:

a. “Boys”;

b. “Coed”; or

c. “Girls”;

...

3. a. An athletic activity or sport designated as “girls” for students in grades six (6) through twelve

(12) shall not be open to members of the male sex.

b. Nothing in this section shall be construed to restrict the eligibility of any student to

participate in an athletic activity or sport designated as “boys” or “coed”; and

CRS-28

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

4. Neither the state board, any agency designated by the state board to manage interscholastic

athletics, any school district, nor any member school shall entertain a complaint, open an

investigation, or take any other adverse action against a school for maintaining separate

interscholastic or intramural athletic teams, activities, or sports for students of the female sex.

...

KY. REV. STAT. ANN. § 164.2813

(1) (a) A public postsecondary education institution or private postsecondary education institution

that is a member of a national intercollegiate athletic association shall designate all intercollegiate and

intramural athletic teams, activities, sports, and events that are sponsored or authorized by the

institution as one (1) of the following categories:

1. “Men’s”;

2. “Coed”; or

3. “Women’s.”

(b) 1. A public postsecondary education institution or private postsecondary education institution

that is a member of a national intercollegiate athletic association shall prohibit a member of the

male sex from competing in any intercollegiate or intramural athletic team, activity, sport, or

event designated as “women’s.”

2. Nothing in this section shall be construed to restrict the eligibility of any student to

participate in an athletic activity or sport designated as “men’s” or “coed.” . . .

LA

LA. STAT. Yes

ANN.

§§ 4:443,

4:444, 9:60

(2026)

CRS-29

Yes

Yes

Yes

Yes

No

LA. STAT. ANN. § 4:443

In this Chapter, unless otherwise indicated, the following definitions shall apply:

(1) “Biological sex” means a statement of a student's biological sex on the student's official birth

certificate which is entered at or near the time of the student's birth.

...

(8) “Schools” means all of the following:

(a) A public elementary or secondary school.

(b) A nonpublic elementary or secondary school that receives state funds.

(c) A public postsecondary educational institution.

(d) A nonpublic postsecondary educational institution that receives state funds.

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

...

LA. STAT. ANN. § 4:444

A. Each intercollegiate or interscholastic athletic team or sporting event that is sponsored by a

school and that receives state funding shall be expressly designated, based upon biological sex, as

only one of the following:

(1) Except as provided in Subsection C of this Section, a male, boys, or mens team or event shall

be for those students who are biological males.

(2) A female, girl’s, or women’s team or event shall be for those students who are biological

females.

(3) A coeducational or mixed team or event shall be open for participation by biological females

and biological males.

B. Athletic teams or sporting events designated for females, girls, or women shall not be open to

students who are not biologically female.

C. Nothing in this Chapter shall be construed to restrict the eligibility of any student to participate in

any intercollegiate or interscholastic athletic team or sport designated as “male,” “mens,” or “boys,”

or designated as “coed” or “mixed.”

LA. STAT. ANN. § 9.60

Notwithstanding any other provision of law to the contrary, no governmental agency . . . shall

prohibit distinctions between the sexes with respect to athletics. . .

MS

MISS. CODE Yes

ANN. § 3797-1 (West

2026)

CRS-30

Yes

Yes

Yes

Yes

No

(1) Interscholastic or intramural athletic teams or sports that are sponsored by a public primary or

secondary school or any school that is a member of the Mississippi High School Activities

Association or public institution of higher education or any higher education institution that is a

member of the NCAA, NAIA or NJCCA shall be expressly designated as one of the following based

on biological sex:

(a) “Males,” “men” or “boys”;

(b) “Females,” “women” or “girls”; or

(c) “Coed” or “mixed.”

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

(2) Athletic teams or sports designated for “females,” “women” or “girls” shall not be open to

students of the male sex. . . .

MO

MO. REV.

STAT.

§ 163.048

(2026)

Yes

Yes

Yes

Yes

Yes

Partialc

1. As used in this section, the following terms mean:

(1) “Athletics,” any interscholastic athletic games, contests, programs, activities, exhibitions, or

other similar competitions organized and provided for students;

(2) “Sex,” the two main categories of male and female into which individuals are divided based on

an individual’s reproductive biology at birth and the individual's genome.

...

3. (1) Except as provided under subdivision (2) of this subsection, no private school, public school

district, public charter school, or public or private institution of postsecondary education shall allow

any student to compete in an athletics competition that is designated for the biological sex opposite

to the student's biological sex as correctly stated on the student's official birth certificate as

described in subsection four of this section or, if the student's official birth certificate is unobtainable,

another government record.

(2) A private school, public school, public charter school, or public or private institution of

postsecondary education may allow a female student to compete in an athletics competition that

is designated for male students if no corresponding athletics competition designated for female

students is offered or available. . . .

MT

MONT.

Yes

CODE ANN.

§ 20-71306

(2025)

Yes

Yes

Yesd

Yes

No

(1) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by

a public elementary or high school, a public institution of higher education, or any school or

institution whose students or teams compete against a public school or institution of higher

education must be expressly designated as one of the following based on biological sex:

(a) males, men, or boys;

(b) females, women, or girls; or

(c) coed or mixed.

(2) Athletic teams or sports designated for females, women, or girls may not be open to students of

the male sex. . . .

CRS-31

NE

NEB. REV.

STAT. §§

79-3803,

79-3804,

79-3805

(2026)

Yes

Yes

Yes

Yes

Yes

Yes

NEB. REV. STAT. § 79-3803

For purposes of the Stand With Women Act:

(1) Athletic association means a corporation, association, or organization which has as one of its

primary purposes the sponsoring or administration of extracurricular interscholastic athletic contests

or competitions;

(2) Boy means an adolescent human male;

(3) Female means an individual who naturally has, had, will have, or would have, but for a congenital

anomaly or intentional or unintentional disruption, the reproductive system that at some point

produces, transports, and utilizes eggs for fertilization. Female includes a woman and a girl;

(4) Girl means an adolescent human female;

(5) Male means an individual who naturally has, had, will have, or would have, but for a congenital

anomaly or intentional or unintentional disruption, the reproductive system that at some point

produces, transports, and utilizes sperm for fertilization. Male includes a man and a boy;

(6) Man means an adult human male;

(7) Postsecondary educational institution means a university, college, or community college located

in Nebraska that is a member institution of an accrediting body recognized by the United States

Department of Education;

(8) Private school means any private, denominational, or parochial school offering instruction in

elementary or high school grades;

(9) Public school means any public school offering instruction in elementary or high school grades;

(10) Sex means an individual's sex, either male or female; and

(11) Woman means an adult human female.

NEB. REV. STAT. § 79-3804

(1) For an interscholastic athletic team or sport sponsored by a public school, a private school

whose students or teams compete against a public school in an interscholastic sport, or a private

school that is a member of an athletic association, the team or sport shall be expressly designated as

one of the following based on sex:

(a) Males, men, or boys;

(b) Females, women, or girls; or

(c) Coed or mixed.

(2)(a) For an interscholastic athletic team or sport sponsored by a public school, a private school

whose students or teams compete against a public school in an interscholastic sport, or a private

school that is a member of an athletic association, a team or sport designated for females, women, or

girls shall not be open to a male student.

CRS-32

(b) For an interscholastic athletic team or sport sponsored by a public school, a private school

whose students or teams compete against a public school in an interscholastic sport, or a private

school that is a member of an athletic association, a team or sport designated for males, men, or

boys shall not be open to a female student unless there is no female team offered or available for

such sport for such female student.

(3) For an interscholastic athletic team or sport sponsored by a public postsecondary educational

institution, a private postsecondary educational institution whose students or teams compete against

a public postsecondary educational institution, or a private postsecondary educational institution that

is a member of an athletic association, the team or sport shall be expressly designated as one of the

following based on sex:

(a) Males, men, or boys;

(b) Females, women, or girls; or

(c) Coed or mixed.

(4)(a) For an interscholastic athletic team or sport sponsored by a public postsecondary educational

institution, a private postsecondary educational institution whose students or teams compete against

a public postsecondary educational institution, or a private postsecondary educational institution that

is a member of an athletic association, a team or sport designated for females, women, or girls shall

not be open to a male student.

(b) For an interscholastic athletic team or sport sponsored by a public postsecondary educational

institution, a private postsecondary educational institution whose students or teams compete against

a public postsecondary educational institution, or a private postsecondary educational institution that

is a member of an athletic association, a team or sport designated for males, men, or boys shall not

be open to a female student unless there is no female team offered or available for such sport for

such female student.

(5) In order to participate in an interscholastic athletic team or sport that is designated for males,

men, or boys or designated for females, women, or girls and that is sponsored by (a) a public school

or a public postsecondary educational institution or (b) a private school or a private postsecondary

educational institution subject to the Stand With Women Act, a student shall provide to such school

or postsecondary educational institution confirmation of such student's sex on a document signed by

a doctor or signed under the authority of a doctor.

(6) Nothing in this section shall be construed to restrict the eligibility of any student to participate in

any interscholastic athletic teams or sports designated as coed or mixed.

NEB. REV. STAT. § 79-3805

A government entity, licensing or accrediting organization, or athletic association shall not entertain a

complaint, open an investigation, or take any other adverse action against a public or private school

CRS-33

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

or a public or private postsecondary educational institution for maintaining any separate

interscholastic athletic team or sport for female students.

NC

N.C. GEN. Not Found

STAT. ANN.

§§ 115C407.55,

115C407.59,

115C407.70,

116-401

(West

2026)

CRS-34

Yes

Yes

Yes

Yes

No

N.C. GEN. STAT. ANN. § 115C-407.55

The State Board of Education shall adopt rules governing high school interscholastic athletic activities

conducted by public school units that include the following:

(1) Student participation rules.—These rules shall govern student eligibility to participate in

interscholastic athletic activities. The adoption of these rules shall not be delegated to an

administering organization, and student participation rules shall not be altered or expanded by an

administering organization. The rules shall include, at a minimum, the following:

...

e. Biological participation requirements as required by G.S. 115C-407.59.

...

N.C. GEN. STAT. ANN. § 115C-407.59

(a) All teams participating in interscholastic or intramural athletic activities shall comply with the

following:

(1) Each team shall be expressly designated by the biological sex of the team participants as one of

the following:

a. Males, men, or boys.

b. Females, women, or girls.

c. Coed or mixed.

(2) Athletic teams designated for females, women, or girls shall not be open to students of the

male sex.

(3) For purposes of this sub-subdivision, a student’s sex shall be recognized based solely on the

student's reproductive biology and genetics at birth.

N.C. GEN. STAT. ANN. § 115C-407.70

(a) The State Board of Education shall adopt rules governing middle school interscholastic athletic

activities conducted by public school units consistent with the requirements of G.S.115C-407.55 for

student participation rules, student health and safety rules, penalty rules, appeals rules, administrative

rules, gameplay rules, fee rules, and reporting rules.

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

...

N.C. GEN. STAT. ANN. § 116-401

(a) All teams that are part of an intercollegiate athletic program of an institution of higher education

shall comply with the following:

(1) Each team shall be expressly designated by the biological sex of the team participants as one of

the following:

a. Males, men, or boys.

b. Females, women, or girls.

c. Coed or mixed.

(2) Athletic teams designated for females, women, or girls shall not be open to students of the

male sex.

(b) For the purposes of this section, sex shall be recognized based solely on a person's reproductive

biology and genetics at birth.

ND

N.D. CENT. Yes

CODE

§§ 1510.6.02,

15.1-39-02

(2026)

CRS-35

Yes

Yes

Yes

Yes

No

N.D. CENT. CODE § 15-10.6-02

1. An intercollegiate or intramural athletic team or sport sponsored by an institution must be

expressly designated as one of the following based on the sex of the intended participants:

a. “Males,” “men,” or “boys”;

b. “Females,” “women,” or “girls”; or

c. “Coed” or “mixed.”

2. An athletic team or sport designated for “females,” “women,” or “girls” may not be open to

students of the male sex.

3. This section may not be construed to restrict the eligibility of a student to participate in

interscholastic or intramural athletic teams or sports designated as “males,” “men,” or “boys” or

designated as “coed” or “mixed.”

N.D. CENT. CODE § 15.1-39-02

1. An interscholastic or intramural athletic team or sport sponsored by a school must be expressly

designated as one of the following based on the sex of the intended participants:

a. “Males,” “men,” or “boys”;

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

b. “Females,” “women,” or “girls”; or

c. “Coed” or “mixed.”

2. An athletic team or sport designated for “females,” “women,” or “girls” may not be open to

students of the male sex.

3. This section may not be construed to restrict the eligibility of a student to participate in

interscholastic or intramural athletic teams or sports designated as “males,” “men,” or “boys” or

designated as “coed” or “mixed.”

NH

N.H. REV. No

STAT. ANN.

§ 193:41

(2026)

Yes

Yes

No

Yes

No

I. In this subdivision, “school” means a public high school in which any combination of grades 9

through 12 are taught or a public middle school in which any combination of grades 5 through 8 are

taught. This shall not apply to students in any grade kindergarten through fourth grade.

II. (a) An interscholastic sport activity or club athletic team sponsored by a public school or a private

school whose students or teams compete against a public school must be expressly designated as

one of the following based on the biological sex at birth of intended participants:

(1) Males, men, or boys;

(2) Females, women, or girls; or

(3) Coed or mixed.

(b) Athletic teams or sports designated for females, women, or girls shall not be open to students

of the male sex. . . .

OH

OHIO REV. Yes

CODE ANN.

§§ 3313.53

20,

3345.562

(West

2026)

Yes

Yes

Yes

Yes

No

OHIO REV. CODE ANN. § 3313.5320

(A) Each school that participates in athletic competitions or events administered by an organization

that regulates interscholastic athletic conferences or events shall designate interscholastic athletic

teams based on the sex of the participants as follows:

(1) Separate teams for participants of the female sex within female sports divisions;

(2) Separate teams for participants of the male sex within male sports divisions;

(3) If applicable, co-ed teams for participants of the female and male sexes within co-ed sports

divisions.

(B) No school, interscholastic conference, or organization that regulates interscholastic athletics shall

knowingly permit individuals of the male sex to participate on athletic teams or in athletic

competitions designated only for participants of the female sex.

CRS-36

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

(C) Nothing in this section shall be construed to restrict the eligibility of any student to participate

on any athletic teams or in athletic competitions that are designated as male or co-ed.

...

OHIO REV. CODE ANN. § 3345.562

...

(B) Each state institution of higher education or private college that is a member of the national

collegiate athletics association, the national association of intercollegiate athletics, or the national

junior college association shall designate intercollegiate athletic teams and sports based on the sex of

the participants as follows:

(1) Separate teams for participants of the female sex within female sports divisions;

(2) Separate teams for participants of the male sex within male sports divisions;

(3) If applicable, co-ed teams for participants of the female and male sexes within co-ed sports

divisions.

(C) No state institution or private college to which division (B) of this section applies shall knowingly

allow individuals of the male sex to participate on athletic teams or in athletic competitions

designated for only participants of the female sex.

(D) Nothing in this section shall be construed to restrict the eligibility of any student to participate

on any athletic teams or in athletic competitions that are designated as male or co-ed. . . .

OK

OKLA.

Yes

STAT. tit.

70, § 27106 (2026)

CRS-37

Yes

Yes

Yes

Yes

No

B. As used in this section:

1. “School” means a public school district or public charter school in this state or an institution

within The Oklahoma State System of Higher Education;

2. “School athletic association” shall have the same meaning as provided for in Section 27-102 of

Title 70 of the Oklahoma Statutes; and

3. “Intercollegiate association” shall mean a national association that sets eligibility requirements for

participation in sports at the collegiate level and that provides the coordination, supervision and

regulation of the intercollegiate competitions.

C. Athletic teams that are sponsored by a school or sponsored by a private school whose students

or teams compete against a school shall be expressly designated as one of the following based on

biological sex:

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

1. “Males,” “men” or “boys”;

2. “Females,” “women” or “girls”; or

3. “Coed” or “mixed.”

...

E. 1. Athletic teams designated for “females,” “women” or “girls” shall not be open to students of

the male sex. . . .

SC

S.C. CODE Yes

ANN. § 591-500

(2026)

Yes

Yes

Yes

Yes

Partiale

(A) For purposes of this section, a statement of a student's biological sex on the student's official

birth certificate is considered to have correctly stated the student's biological sex at birth if the

statement was filed at or near the time of the student's birth.

(B)(1) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored

by a public elementary or secondary school or public postsecondary institution must be expressly

designated as one of the following based on the biological sex at birth of team members:

(a) males, men, or boys;

(b) females, women, or girls; or

(c) coed or mixed, including both males and females.

(2) Athletic teams or sports designated for males, men, or boys shall not be open to students of

the female sex, unless no team designated for females in that sport is offered at the school in which

the student is enrolled.

(3) Athletic teams or sports designated for females, women, or girls shall not be open to students

of the male sex.

(4) A private school or a private institution sponsoring an athletic team or sport in which its

students or teams compete against a public school or institution must also comply with this section

for the applicable team or sport. . . .

SD

S.D.

Yes

CODIFIED

LAWS § 1367-1(2026)

Yes

Yes

Yes

Yes

No

Any interscholastic, intercollegiate, intramural, or club athletic team, sport, or athletic event that is

sponsored or sanctioned by an accredited school, school district, an activities association or

organization, or an institution of higher education under the control of either the Board of Regents

or the Board of Technical Education must be designated as one of the following, based on the

biological sex at birth of the participating students:

(1) Females, women, or girls;

CRS-38

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

(2) Males, men, or boys; or

(3) Coeducational or mixed.

Only female students, based on their biological sex, may participate in any team, sport, or athletic

event designated as being for females, women, or girls. . . .

TN

TENN.

No

CODE

§§ 49-6310, 49-7180, 49-50805 (West

2026)

CRS-39

Yes

Yes

Yes

Yes

Partialf

TENN. CODE § 49-6-310

(a) A student’s gender for purposes of participation in a public middle school or high school

interscholastic athletic activity or event must be determined by the student's sex at the time of the

student's birth, as indicated on the student's original birth certificate. If a birth certificate provided by

a student pursuant to this subsection (a) does not appear to be the student's original birth certificate

or does not indicate the student's sex upon birth, then the student must provide other evidence

indicating the student's sex at the time of birth. The student or the student's parent or guardian must

pay any costs associated with providing the evidence required under this subsection (a).

...

(d) As used in this section:

(1) “High school” means a school in which any combination of grades nine through twelve (9-12)

are taught; and

(2) “Middle school” means a school in which any combination of grades five through eight (5-8)

are taught.

(e) This section does not apply to students in any grade kindergarten through four (K-4).

...

TENN. CODE § 49-7-180

(a)(1) Intercollegiate or intramural athletic teams or sports that are designated for “females,”

“women,” or “girls” and that are sponsored, sanctioned, or operated by a public institution of higher

education or by a private institution of higher education whose students or teams compete against

public institutions of higher education shall not be open to students of the male sex.

(2) Subdivision (a)(1) does not restrict the eligibility of a student to participate in an intercollegiate

or intramural athletic team or sport designated for “males,” “men,” or “boys” or designated as

“coed” or “mixed.”

(b) For purposes of this section, an institution of higher education shall rely upon the sex listed on

the student's original birth certificate, if the birth certificate was issued at or near the time of birth. If

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

a birth certificate provided by a student is not the student's original birth certificate issued at or near

the time of birth or does not indicate the student's sex, then the student must provide other

evidence indicating the student's sex.

...

TENN. CODE § 49-50-805

(a) In connection with an interscholastic athletic activity or event where membership in the

Tennessee Secondary School Athletic Association is required, a student enrolled in a private school

in this state is eligible to participate in such athletic activity or event only in accordance with the

student's sex, as defined in § 49-2-802.

(b) This section does not prohibit a student whose sex, as defined in § 49-2-802, is female from

participating on a team designated for male students if the school does not offer a separate team for

female students in that sport.

TX

TEX. EDUC. Yes

CODE ANN.

§§ 33.0834,

51.980

(West

2026)

CRS-40

Yes

Yes

Yes

Yes

Partialg

TEX. EDUC. CODE ANN. § 33.0834

(a) Except as provided by Subsection (b), an interscholastic athletic team sponsored or authorized by

a school district or open-enrollment charter school may not allow a student to compete in an

interscholastic athletic competition sponsored or authorized by the district or school that is

designated for the biological sex opposite to the student’s biological sex as correctly stated on:

(1) the student's official birth certificate, as described by Subsection (c); or

(2) if the student's official birth certificate described by Subdivision (1) is unobtainable, another

government record.

(b) An interscholastic athletic team described by Subsection (a) may allow a female student to

compete in an interscholastic athletic competition that is designated for male students if a

corresponding interscholastic athletic competition designated for female students is not offered or

available.

(c) For purposes of this section, a statement of a student's biological sex on the student's official

birth certificate is considered to have correctly stated the student's biological sex only if the

statement was:

(1) entered at or near the time of the student's birth; or

(2) modified to correct any type of scrivener or clerical error in the student's biological sex.

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

(d) The University Interscholastic League shall adopt rules to implement this section, provided that

the rules must be approved by the commissioner in accordance with Section 33.083(b). The rules

must ensure compliance with state and federal law regarding the confidentiality of student medical

information, including Chapter 181, Health and Safety Code, and the Health Insurance Portability and

Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.).

TEX. EDUC. CODE ANN. § 51.980

(a) In this section:

(1) “Athletic competition” means any athletic display between teams or individuals, such as a

contest, exhibition, performance, or sport.

(2) “Institution of higher education” has the meaning assigned by Section 61.003.

(b) Except as provided by Subsection (c), an intercollegiate athletic team sponsored or authorized by

an institution of higher education may not allow:

(1) a student to compete on the team in an intercollegiate athletic competition sponsored or

authorized by the institution that is designated for the biological sex opposite to the student's

biological sex; or

(2) a male student to compete on the team in a mixed-sex intercollegiate athletic competition

sponsored or authorized by the institution in a position that is designated by rule or procedure

for female students.

(c) An intercollegiate athletic team described by Subsection (b) may allow a female student to

compete in an intercollegiate athletic competition that is designated for male students if a

corresponding intercollegiate athletic competition designated for female students is not offered or

available. . . .

UTh

UTAH

Yes

CODE ANN.

§ 53G-6902 (West

2026)

CRS-41

Yes

Yes

No

Yes

No

(1) Notwithstanding any state board rule:

(a) a public school or LEA, or a private school that competes against a public school or LEA, shall

expressly designate school athletic activities and teams as one of the following, based on sex:

(i) designated for students of the male sex;

(ii) designated for students of the female sex; or

(iii) “coed” or “mixed”;

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

(b) a student of the male sex may not compete, and a public school or LEA may not allow a

student of the male sex to compete, with a team designated for students of the female sex in an

interscholastic athletic activity; and

(c) a government entity or licensing or accrediting organization may not entertain a complaint,

open an investigation, or take any other adverse action against a school or LEA described in

Subsection (1)(a) for maintaining separate school athletic activities for students of the female sex.

(2) Nothing in this section prohibits an LEA or school from allowing a student of either gender from

participating with a team designated for students of the female sex, consistent with school policy,

outside of competition in an interscholastic athletic activity, in accordance with Subsection (1)(b).

WV

W. VA.

No

CODE § 182-25d

(2026)

CRS-42

Yes

Yes

Yes

Yes

No

(b) Definitions.—As used in this section, the following words have the meanings ascribed to them

unless the context clearly implies a different meaning:

(1) “Biological sex” means an individual’s physical form as a male or female based solely on the

individual's reproductive biology and genetics at birth.

(2) “Female” means an individual whose biological sex determined at birth is female. As used in this

section, “women” or “girls” refers to biological females.

(3) “Male” means an individual whose biological sex determined at birth is male. As used in this

section, “men” or “boys” refers to biological males.

(c) Designation of Athletic Teams.—

(1) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored

by any public secondary school or a state institution of higher education, including a state

institution that is a member of the National Collegiate Athletic Association (NCAA), National

Association of Intercollegiate Athletics (NAIA), or National Junior College Athletic Association

(NJCAA), shall be expressly designated as one of the following based on biological sex:

(A) Males, men, or boys;

(B) Females, women, or girls; or

(C) Coed or mixed.

(2) Athletic teams or sports designated for females, women, or girls shall not be open to students

of the male sex where selection for such teams is based upon competitive skill or the activity

involved is a contact sport.

Education Institution Level Where

Law Applies

Participation

Restrictions

Female

Male

College or Designated Designated

State Citation Elementary Middle High University

Sports

Sports

Excerpted Text

(3) Nothing in this section shall be construed to restrict the eligibility of any student to participate

in any interscholastic, intercollegiate, or intramural athletic teams or sports designated as “males,”

“men,” or “boys” or designated as “coed” or “mixed”: Provided, That selection for a team may still

be based on those who try out and possess the requisite skill to make the team. . . .

WY

WYO.

No

STAT. ANN.

§§ 21-25101, 21-25102 (West

2026)

Source: CRS.

CRS-43

Yes

Yes

No

Yes

No

WYO. STAT. ANN. § 21-25-101

(a) As used in this chapter:

(i) “Coed” or “mixed” means that a team is composed of members of both sexes who traditionally

compete together;

(ii) “Interscholastic athletic activity” means that a student represents the student's school in a

Wyoming high school activities association sanctioned sport;

(iii) “School” means a school consisting of grades seven (7) through 12 (twelve), or any

combination of grades within this range, as determined by the plan of organization by the school

district board of trustees;

(iv) “Sex” means the biological, physical condition of being male or female, determined by an

individual's genetics and anatomy at birth.

WYO. STAT. ANN. § 21-25-102

(a) A public school or a private school that competes against a public school shall expressly designate

school athletic activities and teams as one (1) of the following based on sex:

(i) Designated for students of the male sex;

(ii) Designated for students of the female sex; or

(iii) Coed or mixed.

(b) A student of the male sex shall not compete, and a public school shall not allow a student of the

male sex to compete, in an athletic activity or team designated for students of the female sex.

(c) A government entity or licensing or accrediting organization shall not entertain a complaint, open

an investigation or take any other adverse action against a school described in subsection (a) of this

section for maintaining separate school athletic activities and teams for students of the female sex.

...

a.

b.

c.

d.

e.

f.

g.

h.

CRS-44

According to the Georgia High School Association’s Bylaws, some eighth-grade students may participate in sub-varsity competition in high schools., Constitution ByLaws 1.45, GA. HIGH SCH. ASS’N (Aug. 1, 2024), https://www.ghsa.net/constitution-section-2024-2025-law-100-student#1.40 [https://perma.cc/7ANH-2ULY].

The Georgia statute provides that athletic associations may prohibit students whose gender is male from participating in athletic events that are designated for

students whose gender is female. The Georgia High School Association’s Bylaws provide, “Girls may participate on boys’ teams when there is no girls’ team offered

in that sport or activity by the school (exception: wrestling). Boys may not participate on girls’ teams even when there is no corresponding boys’ sport or activity.”

They also specify that a “student’s sex is determined by the sex noted on his/her certificate at birth.” Constitution By-Laws 1.45, GA. HIGH SCH. ASS’N (Aug. 1, 2024),

https://www.ghsa.net/constitution-section-2024-2025-law-100-student#1.40 [https://perma.cc/7ANH-2ULY].

Subsection 3, paragraph 2 provides that “a private school, public school, public charter school, or public or private institution of postsecondary education may allow

a female student to compete in an athletics competition that is designated for male students if no corresponding athletics competition designated for female students

is offered or available.”

The Montana Supreme Court ruled that the law was unconstitutional as applied to the Montana University System. Barrett v. State, 547 P.3d 630 (Mont. 2024).

Paragraph B(2) states that “athletic teams or sports designated for males, men, or boys shall not be open to students of the female sex, unless no team designated

for females in that sport is offered at the school in which the student is enrolled.”

The statute does not designate who may participate in male designated sports at the college or university level.

At interscholastic and intercollegiate levels, female students may be permitted to compete in sports designated for males if a corresponding competition is not

offered for female students.

A Utah state court has enjoined enforcement of the Utah law. Roe v. Utah High Sch. Activities Ass’n, No. 220903262, 2022 WL 3907182 (Utah Dist. Ct. Aug. 19,

2022).

Gender and School Sports: Federal Action and Legal Challenges to State Laws

Author Information

Madeline W. Donley

Legislative Attorney

Jared P. Cole

Legislative Attorney

Acknowledgments

Table A-1 was created with assistance from CRS Law Librarian Jason Hawkins.

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan

shared staff to congressional committees and Members of Congress. It operates solely at the behest of and

under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other

than public understanding of information that has been provided by CRS to Members of Congress in

connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not

subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in

its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or

material from a third party, you may need to obtain the permission of the copyright holder if you wish to

copy or otherwise use copyrighted material.

Congressional Research Service

R48448 · VERSION 7 · UPDATED

45