September 10, 2026
West Virginia v. B.P.J., 609 U.S. ____ (2026) (Kavanaugh, J.)
Response by Naomi Schoenbaum
Geo. Wash. L. Rev. On the Docket (Oct. Term 2025)
Slip Opinion | SCOTUSblog
Losing Better: A Look at West Virginia v. B.P.J.
Naomi Schoenbaum*
On the last day of the 2025–26 term, the Supreme Court issued its decision in West Virginia v. B.P.J.1 The case challenged state laws excluding transgender women and girls from sports teams for those designated female at birth. Specifically, the Court addressed whether these exclusions violate the Equal Protection Clause or Title IX’s prohibition on sex discrimination. By a 6–3 margin on the constitutional question and unanimously on the statutory question, the Court answered in the negative, upholding the two state laws.2
This loss follows on the heels of another major defeat on transgender rights in the prior term in United States v. Skrmetti,3 which upheld a state law banning gender-affirming care for transgender minors over a constitutional sex discrimination challenge. Skrmetti’s blow to transgender rights spurred a sweeping appraisal of the strategy behind the transgender rights movement, with major media outlets and scholars alike doing deep dives into the considerations behind the litigation.4 Skrmetti was deemed “one of the biggest mistakes in the history of trans activism”5 and “symptomatic of broader problems” in the movement.6 At the heart of the critique of cases like Skrmetti and B.P.J. is an assessment of a transgender rights movement pursuing too much change, too swiftly, and too radically.7
This piece seeks to complicate this narrative by showing that B.P.J.’s strategic error was not in seeking too much, but in seeking too little. It addresses one aspect of the litigation—the choice to bring an as-applied rather than a facial challenge—showing how focusing narrowly on the transgender plaintiffs’ exclusion rather than attacking these laws more broadly left assumptions about the relationship between sex and sport unquestioned, irrationalities in the challenged laws unseen, and sex-based social judgments unexamined. While an as-applied challenge likely seemed the safest, narrowest path to victory for an individual plaintiff, it proved to be a strategic trap.
Bringing B.P.J. and the case with which it was consolidated, Little v. Hecox,8 at all might have been a questionable strategy by civil rights groups like the ACLU that litigated these cases.9 But, as the ACLU noted about Skrmetti, lawyers in these cases “are responding to demands for justice of people who walk into our front door.”10 And these cases were filed in 2020 and 2021, during a period when transgender rights were facing a far more receptive legal landscape, with the landmark 2020 transgender rights victory before a conservative Court in Bostock v. Clayton County11 and a run of wins in a range of transgender rights cases in lower courts.12 One of the biggest criticisms of Skrmetti was the ACLU’s decision to seek review of an adverse decision before a hostile Court. Unlike Skrmetti, however, the transgender plaintiffs in both B.P.J. and Hecox won in the courts of appeals. Whether to bring the case to the Court was not their choice to make.13
The Pitfalls of a Modest Strategy
Beyond the question of whether to litigate (or continue to litigate) a case is the question of how to litigate it, and it is here that I focus. These challenges assumed the general validity of the sex-segregation laws and instead challenged only their ability to exclude transgender females. On this approach, the only question was whether the states had to make an exception for some transgender girls and women who had received treatments that arguably rendered them similarly situated to other females for the purpose of athletic participation (at least those who had blocked puberty and possibly others). The Court held that they did not. Whether transgender female athletes who received hormonal treatment held an athletic advantage over their cisgender counterparts was irrelevant. Under intermediate scrutiny, the Court explained, “validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government’s interests in an individual case.”14
This narrower approach seems more modest than one that facially attacks the laws in question, and it had been successful in lower courts.15 But raising only the narrow theory of the case, rather than also or instead of raising the broader theory, came with costs. The narrow challenge meant too little contesting of the states’ understanding of sex and its relationship to sport; too little airing of the irrational and sometimes absurd ways that these laws segregated sex in sports; and too much reliance on the science of sex rather than on a critique of the social judgments animating these laws. To be clear, my argument is not that a different litigation strategy would have brought victory. My claim is more modest: that a different strategy might have brought a better loss.
Three Costs of the As-Applied Approach
1. Ceding Biological Determinism. The narrow challenge here led no one—neither those challenging the law nor the Justices in dissent—to contest the faulty logic at the heart of the state laws. The majority begins its analysis with the “undisputed proposition that biological males generally possess inherent physical advantages in sports—in height, weight, strength, speed, endurance, jumping ability, and the like.”16 From this, the Court concludes that two important state interests follow: “Therefore, in contact sports, forcing female athletes to compete against males can create significant safety risks. And in virtually all competitive sports, forcing female athletes to compete against males can undermine competitive fairness.”17 The dissent agrees.18 There are no citations of fact or law, nor any assurance that these conclusions are only assumed for the litigation or any suggestion that they might be altered by review of the challenged laws.19
Because everyone accepted the core premises of biological sex segregation and its relevance for sport, they are treated as settled fact and settled law. There was no argument about the social judgments and stereotypes around the meaning of sex and its implication for sports. Return to the Court’s statement that “males generally possess inherent physical advantages in sports—in height, weight, strength, speed, endurance, jumping ability, and the like.”20 This generalization embodies the grossest of sex stereotypes, as being taller or heavier is a disadvantage in many sports: gymnastics, diving, horse racing, martial arts, wrestling, and mountain climbing, to name a few.21 Serious safety risks exist in many sports even when sex segregated. For example, football causes brain damage, yet no state has age-gated tackle football.22 And many biological differences across athletes that present undoubted athletic advantage, such as height or wingspan, are not treated as unfair. Only rarely are sports segregated by physical features that impart advantage, such as weight classes in wrestling. By contrast, biological differences related to sex are treated as per se unfair. The states’ failure otherwise to regulate sports to increase safety or competitive fairness, and to do so only with partial sex segregation, calls into question the veracity of the states’ asserted interests and how important they really are.23
2. Obscuring Statutory Irrationalities. Because the laws were not facially challenged, their provisions did not make their way into the decision. If they had, it would have been hard to take the states’ asserted interests seriously. Even a cursory review of their provisions reveals that the use of sex furthered the state’s purported aims of safety and competitive fairness only loosely, if at all. The laws apply only to female sports.24 This means that girls and women can play on male teams without any concern for their safety. If states were motivated by the safety risks that playing sports with men and boys imposes on women and girls, they would bar not only transgender girls from girls’ teams, but cisgender girls from boys’ teams. This they do not do. And because the laws define sex only by biology at birth,25 cisgender girls or women who are receiving testosterone—which is known to enhance athletic performance26—can play on female teams without any concern for competitive fairness. Under one of the challenged laws, if the school decides to sex segregate a sport, they can do so as young as elementary school, for any sport, and at all levels of competition, even though it is far from clear that sex-segregating in prepubescent minors or club sports furthers any important interest in safety or fairness.
3. Reducing Civil Rights to Science. As Professor Douglas NeJaime has explored, litigation—and litigation losses—make meaning for the public and for social movements.27 The narrow framing here made the outcome turn entirely on contested science. We can see this in the dissenting opinion, which made clear that the linchpin of the case was a factual dispute over whether the plaintiff and those similarly situated (transgender females who had undergone hormonal treatment) retain athletic advantages over cisgender females.28 Treating the case as turning merely on a question of fact that the public might answer unfavorably to the plaintiffs rather than on the patently illogical provisions of the challenged laws allowed the decision to be received by liberal media as “utterly mainstream.”29 As feminist legal scholars have repeatedly warned, treating questions of sex discrimination as a matter of bodies obscures the social judgments and stereotypes that are bound up in sex-based rules.30
Conclusion: Rethinking the Safe Path
I have focused on the strategic dimensions of the legal challenges’ nature. Whether transgender rights are best advanced with exceptions to the rules of sex segregation or by dismantling these rules is also a political question about transgender rights and sex equality writ large. To the extent that transgender rights cases have proceeded on a narrow path because this approach was thought to be less risky, the preceding analysis has meant to call this into question. If undoing sex segregation is the aim of one’s political project, broader challenges attacking these laws head-on may not only further this political project but may also end up being the safer strategy, too.
Naomi Schoenbaum is the William Wallace Kirkpatrick Dean’s Research Professor of Law whose primary interests are employment law, antidiscrimination law, and gender and the law. Professor Schoenbaum’s research contains three main strands. She studies law at the juncture of employment and family, looking at the legal regulation of subjects such as geographic mobility, workplace relationships, and the sharing economy. Professor Schoenbaum also studies the law of sex equality, including the legal implications of new conceptions of sex and the law’s failure to unsex biological phenomena, such as pregnancy and breastfeeding. Finally, Professor Schoenbaum’s work considers the design of employment discrimination law, with current work addressing the problem of hiring discrimination.
References
* William Wallace Kirkpatrick Dean’s Research Professor of Law, George Washington University School of Law. I thank Doug NeJaime for helpful comments.
[1] 146 S. Ct. 2356 (2026).
[2] While the majority and dissent divided on the demands of equal protection review, they agreed on Title IX’s statutory exception for athletics. Id. at 2401 (Sotomayor, J., concurring in the judgment in part and dissenting in part).
[3] 605 U.S. 495 (2025).
[4] See, e.g., Douglas NeJaime, Before Losing, 135 Yale L.J.F. 63, 63, 65 (2025) (using United States v. Skrmetti to show that although “losing litigation can be used in ways to advance a social movement’s aims,” the premise that “there is little at stake in decisions regarding whether and how to litigate” is wrong, and addressing a variety of ex ante considerations important to whether and how to litigate a case); Nicholas Confessore, How the Transgender Rights Movement Bet on the Supreme Court and Lost, N.Y. Times (June 19, 2025), https://www.nytimes.com/2025/06/19/magazine/scotus-transgender-care-tennessee-skrmetti.html [https://perma.cc/X7ZD-S33Z] (reporting on the “rising criticism of the strategic and political judgments animating the A.C.L.U.’s litigation” that views “the Skrmetti case as a tragic gamble built on flawed politics” that “may also have set their movement back a generation”).
[5] Confessore, supra note 4 (quoting Interview with Brianna Wu, Board, Rebellion PAC).
[6] Confessore, supra note 4.
[7] See Andrew Sullivan, How the Gay Rights Movement Radicalized and Lost Its Way, N.Y. Times (June 26, 2025), https://www.nytimes.com/2025/06/26/opinion/gay-lesbian-trans-rights.html (arguing that “fighting a losing battle to allow trans women to compete in women’s sports and for biological men to be in women’s intimate spaces and to perpetuate risky, inadequately tested sex changes on children, including gay and lesbian ones, is dumb, offensive to common sense and risks a much bigger backlash”). For another critique of the litigation strategy, see Craig Konnoth, Why the Supreme Court Decided the Wrong Issue in the Transgender Athletes Cases, ScotusBlog (July 27, 2026), https://www.scotusblog.com/2026/07/why-the-supreme-court-decided-the-wrong-issue-in-the-transgender-athletes-cases/ (arguing that plaintiffs should have instead focused on “the definition of ‘sex’ itself”).
[8] 104 F.4th 1061 (9th Cir. 2024), rev’d sub nom. West Virginia v. B.P.J., 146 S. Ct. 2356 (2026).
[9] Cf. NeJaime, supra note 4, at 86 (quoting commentary that “activists ‘lost credibility with many Americans once they started accusing people of bigotry over sports’” (quoting Jeremy W. Peters, Transgender Activists Question the Movement’s Confrontational Approach, N.Y. Times (Nov. 26, 2024), https://www.nytimes.com/2024/11/26/us/politics/transgender-activists-rights.html [https://perma.cc/52CL-45RZ])).
[10] Confessore, supra note 4 (quoting Interview with Anthony Romero, Executive Director, ACLU).
[11] 590 U. S. 644 (2020).
[12] This moment was a turning point in transgender rights. While transgender rights litigation had been overwhelmingly successful in the lower courts, legislatures and public opinion were beginning to turn on transgender rights. See Katie Eyer, Transgender Constitutional Law, 171 U. Pa. L. Rev. 1405 (2023) (tracking the litigation); Kim Parker et al., Americans’ Complex Views on Gender Identity and Transgender Issues, Pew Rsch. Ctr. (June 28, 2022), https://www.pewresearch.org/social-trends/2022/06/28/americans-complex-views-on-gender-identity-and-transgender-issues/ [https://perma.cc/3B3G-NB6V] (finding that the percentage of people who thought society had gone too far in accepting transgender people increased from fifty-four percent in 2017 to sixty percent in 2022). Public opinion on the view that sports should be segregated by sex assigned at birth increased after this time, from fifty-eight percent in 2022 to sixty-six percent in 2025. See Americans Have Grown More Supportive of Restrictions for Trans People in Recent Years, Pew Rsch. Ctr. (Feb. 26, 2025), https://www.pewresearch.org/short-reads/2025/02/26/americans-have-grown-more-supportive-of-restrictions-for-trans-people-in-recent-years/ [https://perma.cc/5SXF-AKVE]. The first state law excluding transgender girls and women from sports was the Idaho law challenged in Hecox v. Little that was passed in 2020. 104 F.4th 1061, 1068 (9th Cir. 2024).
[13] The lawyers in the Hecox case tried to have the case deemed moot. Hecox, 104 F.4th at 1072.
[14] B.P.J., 146 S. Ct. at 2376 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 801 (1989)). As I explain in other work, B.P.J. dramatically loosened the connection required between the state’s asserted interest and the sex-based line’s ability to achieve it. See Naomi Schoenbaum, Equal Protection’s Split 22 (unpublished manuscript) (on file with author).
[15] See generally Eyer, supra note 12 (tracking litigation for constitutional claims challenging discrimination against transgender people).
[16] B.P.J., 146 S. Ct. at 2374.
[17] Id. at 2367.
[18] See id. at 2385, 2390 (Sotomayor, J., concurring in the judgment in part and dissenting in part) (“As the majority further identifies, no one disputes that sorting based on sex identified at birth, as a means to achieve West Virginia’s asserted interests, will further those interests in most situations. That is because, as the majority explains and B. P. J. does not contest, there are inherent physical differences between males and females, as defined by sex identified at birth, making them differently situated generally when it comes to many sports.” (citations omitted)).
[19] See id.
[20] B.P.J., 146 S. Ct. at 2367.
[21] See Thomas Samaras, Human Body Size and the Laws of Scaling 47 (2007) (citing numerous “inherent physical advantages [of smaller stature] which can result in outstanding athletic abilities” and sports where this matters).
[22] See Christopher Nowinski, Evidence is frighteningly clear: Football causes brain damage, S.F. Chron., Sep. 1, 2026, at A12 (discussing the evidence and a proposed but failed California law that would have imposed a minimum age on tackle football).
[23] Cf. Erwin Chemerinsky, Constitutional Law: Principles and Policies 746 (7th ed. 2023) (noting that underinclusiveness can be problematic under sex equality’s intermediate scrutiny standard).
[24] See Idaho Code § 33-6203(2) (stating that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex,” but nothing about sports for males, men, or boys); W. Va. Code § 18-2-25d(c)(2) (requiring that teams designated female “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”).
[25] See Idaho Code § 33-6203(3) (requiring that “biological sex” be determined by “relying only on one (1) or more of the following: the student’s reproductive anatomy, genetic makeup, or normal endogenously produced testosterone levels”); W. Va. Code § 18-2-25d(b)(1) (defining “biological sex” as “an individual’s physical form as a male or female based solely on the individual’s reproductive biology and genetics at birth”).
[26] See Ruth I. Wood & Steven J. Stanton, Testosterone and Sport: Current Perspectives, 61 Horm. Beh. 147, 147 (2012).
[27] NeJaime, supra note 4, at 84 (explaining how “movement actors engage in conscious strategic efforts . . . to fashion shared understandings of the world and of themselves that legitimate and motivate collective action” and how “[a] court decision can validate some frames and impede others” (internal quotation marks omitted)).
[28] See B.P.J., 146 S. Ct. at 2385, 2389, 2392, 2394, 2400 (Sotomayor, J., concurring in part and dissenting in part) (referring repeatedly to the “unresolved factual dispute over whether transgender girls are similarly situated to cisgender girls”).
[29] Helen Lewis, The Supreme Court’s Utterly Mainstream Ruling on Women’s Sports, The Atlantic (July 1, 2026), https://www.theatlantic.com/ideas/2026/07/supreme-court-trans-student-athletes-womens-sports/687767/.
[30] See, e.g., Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 265 (1992); Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1 (1995); Naomi Schoenbaum, Rethinking Sex as Biology Under Equal Protection, 58 U.C. Davis L. Rev. 905 (2024).
