Liberty Counsel filed an amicus brief to the U.S. Supreme Court in two consolidated landmark sports cases, Little v. Hecox and West Virginia v. B.P.J, each centered on whether states may lawfully ban gender-confused males from participating in female sports. Both cases raise important questions under the federal anti-discrimination statute Title IX and the Fourteenth Amendment’s Equal Protection Clause as to whether these laws protect gender identity at the expense of competitive fairness.

The High Court is expected to hear oral arguments in the Fall of 2025 with a ruling anticipated by June 2026. The decision will likely have significant implications across the nation since at least 27 states have similar laws protecting women and girls. As for constitutional law, the language of Title IX is based on sex, not gender identity, and any interpretation similar to the High Court’s 2020 Bostock decision that concluded Title VII’s anti-discrimination law protects gender identity could eliminate Title IX’s sex-based protections for women.

In Little v. Hecox, SCOTUS will review Idaho’s 2020 “Fairness in Women’s Sports Act,” and in West Virginia v. B.P.J, it will review West Virginia’s 2021 “Save Women’s Sports Act,” both of which protect the safety and opportunities of female athletes by barring biological males from female competitive sports teams at public schools and universities.

In the brief, Liberty Counsel states that Bostock focused on Title VII workplace protections and is not a “one-size-fits-all opinion.” Unlike Title VII, which largely recognizes no inherent difference between males and females in the workplace, Title IX recognizes the inherent physiological differences between males and females from birth. Title IX was specifically enacted to increase female participation in sports and to create more athletic opportunities for women, which necessarily involves treating the two biological sexes differently.

“Title VII sought to remove separate spaces from society by recognizing that there were no inherent advantages in the workplace because of a person’s skin color, religion, or sex,” wrote Liberty Counsel “Title IX recognized the exact opposite: there are inherent advantages between biological males and biological females that support separate sports teams and living arrangements for each sex.”

Liberty Counsel noted that “gender identity” has nothing to do with sports. Gender identity, like religion or nationality, does not change a person’s biology or physicality, such as how far they can throw or how fast they can run. In competitive sports, the comparisons that matter are an “individual’s capacity to run, lift, jump, throw, hit, punch, or whatever conduct the sport permits.” Only biology should impact Title IX analysis, not any gender identity perception that differs from “a person’s biological and chromosomal reality,” wrote Liberty Counsel.

Studies referenced in the brief offer only one conclusion, which is that biological males are physiologically different than biological females and physiology cannot be “reformatted” by hormones. Therefore, biological males will enter female sports with an inherent unfair advantage because of their male physiology while displacing women in the process, wrote Liberty Counsel.  

In the past year alone, biological males have competed against females displacing women from those slots, breaking records, and sharing locker rooms with females in high schools in California, Maine, Minnesota, Oregon, New Hampshire, Washington, Pennsylvania, and New York. To require females to compete against biological males and to share their private spaces with them infringes upon the safety, fairness, and opportunities of these women and girls and “defies Title IX’s express language,” wrote Liberty Counsel. 

As to the Equal Protection Clause, Liberty Counsel concluded that gender identity, which is subject to change over time, does not fall under the Clause because gender identity “does not have an obvious, immutable, or distinguish­ing characteristic” like other protected groups. 

In Little v. Hecox, the Ninth Circuit Court of Appeals upheld a lower court’s injunction blocking Idaho’s law. However, “Lindsay” Hecox, the biological male challenging Idaho’s law so he can run on a collegiate female track team, recently asked SCOTUS to dismiss the case as moot because he no longer wishes to participate in sports. The High Court has yet to decide whether to proceed.

Regarding West Virginia v. B.P.J, the U.S. District Court ruled in favor of the state’s “Save Women’s Sports Act” stating it was based on athletic fairness according to the legitimate differences between the sexes. However, the Fourth Circuit Court of Appeals reversed that ruling equating gender identity discrimination as sex discrimination and declared the law unconstitutional.

Liberty Counsel Founder and Chairman Mat Staver said, “Biological reality dictates that men and women are different. These laws acknowledge reality so female athletes are not competitively, physically, and emotionally harmed by gender-confused males in their sports and private spaces. Title IX’s purpose is to provide more opportunities to women and girls. Permitting biological males in female sports would eviscerate the entire purpose of Title IX and erase women in athletics.”