PDE Files Supreme Court Amicus Brief in West Virginia v. B. P. J.

Congress overwhelmingly passed Title IX in 1972. See 118 Cong. Rec. 6,277 (Mar. 1, 1972) (Senate: 88-6); 118 Cong. Rec. 16,842 (May 11, 1972) (House: 275-125). Title IX’s core prohibition is only 37 words and states: “No person in the United States 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).

When Congress approved that language in 1972, no one was voting to let biological men play women’s sports. Quite the opposite, Congress sought to pro-mote women’s sports, even passing an amendment re-quiring the implementing agency to equalize the opportunities for female athletics. See 88 Stat. 484, 612 (1974). Indeed, “‘it would require blinders to ignore that the motivation for’ enacting Title IX … was to promote opportunities for girls in sports.” B.P.J. ex rel. Jackson v. W.V. State Bd. of Educ., 98 F.4th 542, 573 (4th Cir. 2024) (Agee, J., dissenting).

In fact, a bill that imposed this policy wouldn’t even pass today. Nearly 70% of Americans “say transgender athletes should only be allowed to compete on sports teams that conform with their birth gender”—a number that is growing over time. Jones, More Say Birth Gender Should Dictate Sports Participation, Gallup (June 12, 2023), perma.cc/F78B-ATGV.

But the Fourth Circuit has imposed a view of Title IX that neither its text, its history, nor its purpose supports. Under the panel majority’s decision, recipi-ents must allow biological males who identify as transgender to participate in women’s sports. They must allow biological females to be routinely displaced on teams and from competition podiums by transgender athletes because these athletes have im-mutable biological advantages. They must allow bio-logical males to share private spaces like locker rooms with female athletes. And they must allow biological males to injure female athletes more often and more severely than otherwise because their biologically male competitors are naturally bigger, faster, and stronger than their female counterparts. Title IX—which before the Fourth Circuit’s decision, trans-formed women’s sports for the better—could not possibly require these absurd results. “By compelling schools to allow transgender girls to participate on biological girls’ teams,” the Fourth Circuit “uses Title IX to deny the very benefits it was enacted to protect.” B.P.J., 98 F.4th at 573 (Agee, J., dissenting).

Without this Court’s intervention, female athletes in West Virginia and in States across the Fourth Cir-cuit will be robbed of Title IX’s benefits. The Court should grant the petition, restore Title IX’s original public meaning, and reject the “highly counterintuitive result” that the Fourth Circuit decision requires. Yellen v. Confederated Tribes of Chehalis Rsrv., 594 U.S. 338, 360 (2021).