“Fairness for Whom? Title IX and the Legal Fight to Define a “Female” in Women’s Sports.”

Why Biological Differences Matter Under Title IX

In the world of athletics, fairness and opportunity are core values. Title IX of the Education Amendments of 1972 has long served as the legal foundation for ensuring that female athletes receive equal opportunity in school sports. But over the past decade, a new conflict has emerged that strains this foundation: should biological males ‘who identify’ as female be permitted to compete in girls’ and women’s sports? And if so, what does that mean for fairness in competition and for the very protections Title IX was designed to secure?

For biological women, Title IX opened doors that had long been closed, creating opportunities for competition, scholarships, and professional pathways that previously did not exist. This debate though framed as ‘binary’ or ideological, when in reality it is rooted in an intersection of biology, fairness, and safety. This question is not simply rhetorical. It is currently before the U.S. Supreme Court in a pair of cases that will define the future of high school and college sports in America. And the stakes are high, especially for biological girls who train, compete, and strive for recognition in athletics.

Title IX: Originally About Biological Sex, Not Gender Identity

Competitive sports are one of the few areas of society where biological sex has long been recognized as materially relevant. Decades of scientific research demonstrate that, after puberty, males on average possess advantages in muscle mass, bone density, lung capacity, cardiovascular output, and strength due to testosterone exposure. These differences are not marginal; in many sports they translate into measurable and sometimes decisive performance gaps.

At its core, Title IX states: “No person … shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).[1] Female athletic categories were created to ensure that women could compete on a level playing field rather than being consistently displaced by male-bodied competitors. Title IX institutionalized this principle, recognizing that formal equality without accommodation for biological reality would produce substantive inequality.

In enforcing Title IX, courts and regulators have historically interpreted “sex” to refer to biological sex – male or female at birth – because the statute’s purpose was to address historical disparities between men’s and women’s opportunities in education and sport. Longstanding regulations allow schools to operate separate teams for males and females when teams are based on competitive skill or involve contact sports. Separate teams are not considered discriminatory if opportunities for each sex are “effectively accommodated.” 34 C.F.R. § 106.41(c).[2] When male and female athletes compete directly against one another in contact or strength-based sports, the consequences extend beyond competitive fairness. Safety becomes a central concern. In sports such as soccer, basketball, rugby, track and field, and combat sports, disparities in size, speed, and strength can increase the risk of injury to female athletes.

Scholars highlight that Title IX’s athletics provisions presuppose biological differences that could affect competitive balance.[3] However, complexity does not eliminate the need for clear criteria.[4] Beyond physical harm, there is also the cumulative impact on opportunity. Records, podium placements, scholarships, team selection, and visibility are finite resources. When biological differences are not accounted for, female athletes may lose not only competitions but also access to advancement pathways that Title IX was designed to protect.

The Supreme Court Cases: Biology and redefining females

Two cases – West Virginia v. B.P.J.[5] and Little v. Hecox[6] – are now before the U.S. Supreme Court after decades of escalating litigation. Both involve state laws that restrict participation in girls’ athletics to those who are biologically female at birth. These laws are meant to protect the integrity of women’s sports by acknowledging innate biological differences that affect fair competition. If “female” is defined by gender identity rather than biology, transgender women may be legally included in definitions of women for equality purposes, protecting their access to spaces and services. Removing a strict biological definition of “female” could allow transgender women into spaces previously reserved for biological women, such as changing rooms, shelters, and sports, which some argue affects the safety or fairness for biological females, which has negative consequences for biological females and their access to spaces and services.

1. West Virginia v. B.P.J.

This case challenges West Virginia’s Save Women’s Sports Act, which prohibits biological males from participating on girls’ sports teams in public schools. The Fourth Circuit held that the law violated Title IX and the Equal Protection Clause because it treated a transgender girl, B.P.J., worse than similarly situated individuals. B.P.J. v. West Virginia State Bd. of Educ., 98 F.4th 542 (4th Cir. 2024).

Now before the Supreme Court, one key question is whether Title IX permits a sex-based distinction in athletics based on biological sex at birth when that distinction is necessary to preserve fair competition and equal opportunity for biological girls. West Virginia v. B.P.J., No. 24-43 (U.S. Sup. Ct.).

2. Little v. Hecox

In a similar case from Idaho, Little v. Hecox challenges Idaho’s Fairness in Women’s Sports Act, which likewise bars biological males from girls’ teams. The Ninth Circuit upheld preliminary injunctions against enforcement on equal protection grounds. Little v. Hecox, No. 24-38 (U.S. Sup. Ct.).

The Supreme Court consolidated these challenges. Oral arguments in January 2026 revealed that several justices are concerned about how athletic categories defined by gender identity might upend the historic role of separate male and female teams. Conservative justices expressed skepticism that including biological males in women’s sports aligns with Title IX’s original purpose.

The Biological Basis for Separate Categories

Scientific studies and athletic data demonstrate that biological males develop distinct physiological advantages during puberty – higher levels of testosterone, greater muscle mass, larger hearts and lungs, and different skeletal structures – that contribute to measurable performance differences in strength, speed, and endurance. These differences matter most in athletic competition.

Though some research on transgender athletes is ongoing and complex, the general scientific consensus is that many advantages linked to male puberty are not fully mitigated by hormone therapy, especially in strength and power sports.[7] This biological reality underpins why most competitive sports have sex-segregated categories – to ensure that cisgender female athletes are not placed at a competitive or safety disadvantage. A study in the Journal of Sports Sciences reported that a majority of elite female athletes saw categorization by biological sex as fair in strength and contact sports contexts.

Impact on Biological Girls’ and Womens’ Opportunities

1. Competitive Displacement

When biological males compete in female sports, biological women and girls may find themselves disadvantaged for roster spots, scholarships, and titles. Because athletic participation often has cascading effects – on college recruitment, scholarships, and lifelong opportunities – this competitive displacement is not trivial. Legal advocates for separate categories argue that Title IX was enacted to correct decades of exclusion and unequal treatment of girls in sports – not to erode the distinction between male and female competition that ensures fairness.[8]

2. Physical Safety Concerns

In contact sports, the physiological advantages that often accompany male development raise safety considerations as well as competitive ones. Biological girls subject to collisions with athletes who are larger and stronger face increased injury risks, something courts have recognized as a legitimate concern in athletic contexts.

3. Erosion of the Purpose of Title IX

Title IX is not just about participation – it is about equal benefit and protection for a historically disadvantaged group: women and girls. If significant biological advantages are overlooked in applying the law, the core purpose of Title IX – to ensure that women and girls are free from discrimination and disadvantage in educational athletic programs – may be effectively undermined.[9]

Legal Scholarship: Balancing Inclusion and Fairness

The legal scholarship on this topic illustrates the complexity:

• Uniform Rules for Fair Competition: Scholars like K. Comerford argue for clear Title IX guidance that balances inclusion with preserving fair athletic competition, stressing that biology should be considered in eligibility standards.[10]
• Weaponization of Title IX: Other academics examine how Title IX’s protections are being interpreted in ways that may weaponize the statute against female athletes when biological sex distinctions are blurred.[11]
• These scholarly works underscore that while inclusion is an important consideration, fair competition requires acknowledgment of biological differences – a view that aligns with the Title IX purpose of expanding opportunities for women and girls, not diminishing them.

What the Supreme Court’s Decision Could Mean

As the Supreme Court weighs these cases – West Virginia v. B.P.J. and Little v. Hecox – the justices will not only interpret specific statutes and constitutional guarantees but define how America understands fair competition. The Court’s ruling is expected by mid-2026 and will shape whether states may restrict participation in female sports based on biological sex to protect competitive balance and safeguard opportunities for biological girls.

If the Court upholds these laws, it signals judicial recognition that Title IX’s prohibition on discrimination does not override biological realities that affect equal athletic opportunity. If the Court strikes them down, it will reshape Title IX’s application and potentially require new legislative or regulatory frameworks for athletics.

Conclusion

Title IX was a civil-rights law that opened doors for girls and women in sports across the United States. In confronting the question of whether males may compete against girls under Title IX, the legal system finds itself at the intersection of biology, fairness, and equality. Biological differences matter in athletic competition, both for fair opportunity and for safety.[12] Title IX was never intended to be a static statute; it has adapted over decades. But adaptation must remain tethered to purpose. Protecting women’s sports requires acknowledging biological differences without demeaning anyone’s identity. These are not mutually exclusive goals, but achieving both demands honesty, and evidence-based policymaking.

As the Supreme Court prepares its rulings in West Virginia v. B.P.J. and Little v. Hecox, we may well witness a reinterpretation of sex-based protections in law and sport. Whatever the outcome, the decision will be a defining moment on how fairness is maintained in athletic opportunity for biological girls and women across the country; hence, whether Title IX will continue to function as a meaningful safeguard for biological females – or whether its protections will be reinterpreted in ways that erode them. The future of women’s athletics depends not on denying complexity, but on confronting it responsibly, with fairness, safety, and biological reality firmly in view. Ignoring this reality risks undermining the very class Title IX was enacted to safeguard: biological females. The intention to protect biological women was not to consider males claiming to be females playing in sports against females.

J.B. Lorenzo  1.18.2026

#womensports #genderidentity #law #TitleIX #SCOTUS #biologicalfemale #equality #policymaking #transgender #femaleathletics #discrimination #fairness #torts #strictliability

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[1] 20 U.S.C. § 1681(a) (1972).

[2] 34 C.F.R. § 106.41(c) (2025).

[3] See generally JB Reich, Title IX, Transgender, and Athletic Opportunities, 32 Marq. Sports L. Rev. 1, 5 – 7 (2022) (noting that biological males may retain significant physical advantages even after transition efforts).

[4] JB Reich, Title IX, Transgender, and Athletic Opportunities, 32 Marq. Sports L. Rev. 1 (2022).

[5] West Virginia v. B.P.J., No. 24-43 (U.S. Sup. Ct. 2026).

[6] Little v. Hecox, No. 24-38 (U.S. Sup. Ct. 2026).

[7] See generally JD Safer & co-authors, Fairness for Transgender People in Sport, 2022 Nat’l Ctr. Biotech. Info. (noting testosterone as the established athletic performance driver).

[8] See generally S Skinner-Thompson, Title IX’s Protections for Transgender, Wis. J. L., Gender & Soc. (detailing Title IX jurisprudence and the rationale for sex-separate teams).

[9] See also, CRS Report: Emerging Legal Issues Under Title IX, CRS R47983 (Mar. 25, 2024). (noting transgender participation as one of the key issues reshaping Title IX athletics enforcement).

[10] K. Comerford, How Title IX Should Regulate Transgender Female Athletes, 2022 S. U. L. Rev. 1822.

[11] J. Brant, Sword, or Shield? The Weaponization of Title IX Against Women and Girls in Sport, 2024 U. Minn. L. Inequality.

[12] Majority of Elite Female Athletes Favor Categorization by Biological Sex, Journal of Sports Sciences study (2024).