The Supreme Court says states may protect fair opportunity for women and girls

Not long ago, most people thought that expanding athletic opportunities for women and girls was a good thing. Then the gender warriors invaded, claiming that “women and girls” was not a real thing at all, just a label each of us can choose for ourselves. Males and females, they said, were interchangeable and should be able to compete against each other. States are fighting back, and the Supreme Court today gave them a green light.

Idaho and West Virginia join 25 other states with laws prohibiting males from competing in female school sports. Males, after all, have a real competitive advantage in many physical activities. In 2023, the American College of Sports Medicine released an “expert consensus statement” concluding: “Biological sex is a determinant of athletic performance. ... Significant differences emerge at puberty.” The NCAA and the International Olympic Committee now have participation policies based on biological reality.

Even the United Nations gets it. An October 2024 report concluded: “Male athletes have specific attributes considered advantageous in certain sports, such as strength and testosterone levels that are higher than those of the average range for females, even before puberty.” Ignoring that fact results in “the loss of fair opportunity” for females.

Gender activists think such fairness should be eliminated, not protected. To them, your sex may be what your chromosomes say, but “gender” is what you say to yourself, and that’s what counts. A child, they say, should be able to decide whether to compete against boys as “Johnny” or against girls as “Jenny.”

Male athletes sued Idaho and West Virginia, claiming their laws protecting fairness in women’s sports violate either the Constitution or Title IX, a federal law prohibiting sex discrimination in school programs receiving federal funds. Their argument is basically this: Discrimination based on sex is already illegal, and discrimination based on “gender identity” is the same thing. The Supreme Court did not take the bait.

The court voted 6-3 that these laws do not violate the Constitution and unanimously that they do not violate Title IX. Justice Brett Kavanaugh, writing for the majority, explained that by separating sports by sex and limiting female sports to females, these laws make a sex-based classification. The Supreme Court previously held that such a law must be “substantially related” to an “important” government objective. Because males have an inherent biological advantage in sports, the court said, the safety of females and ensuring competitive fairness meet this standard.

These decisions are even more important when combined with others addressing gender-related issues. In United States v. Skrmetti, for example, the Supreme Court last year held that laws prohibiting so-called gender-affirming care for minors do not violate the equal protection clause. The court did not address whether sex and gender are the same because it concluded that these laws do not discriminate on the basis of sex at all. No minor, regardless of sex, may obtain puberty-suppressing drugs except for medically approved purposes.

The court’s March 2026 decision in Mirabelli v. Bonta dealt with another front in the gender wars: public schools that “socially transition” children by catering to their latest expression of gender without informing their parents. Thousands of schools, teaching millions of children, have these policies: staff must address children with the pronouns and names the children prefer and allow them to use whatever facilities (including locker rooms) and engage in what activities (including sports) that their current sense of gender desires. In Mirabelli, the Supreme Court said parents have a constitutional right to be informed and make decisions about such things.

THE SUPREME COURT'S DEFERENCE TO BIOLOGY

Here, too, the court did not directly say that sex and gender are different.

The court did not have to do so here either, at least not with a direct or definitive holding. It did, however, distinguish its 2020 decision in Bostock v. Clayton County, which involved Title VII ban on sex discrimination in employment. In Bostock, an employer was fired because of transgender status. Here, the Idaho and West Virginia laws instead classify by sex. Justice Clarence Thomas joined Kavanaugh’s opinion but wrote a short concurrence making the crucial point that “[m]en and boys with gender dysphoria are not women or girls, even if they believe that they are. Sex is an immutable ‘biological’ characteristic … it is binary. … To use language to obscure reality — to show ‘indifference regarding the truth’ — is to lie to the public and cease to treat our fellow citizens ‘as equal[s].’” The path is now clear to base laws in this area on the truth.

Thomas Jipping is a senior legal fellow at Advancing American Freedom Foundation. Connor Bolster is an intern at Advancing American Freedom Foundation.