Introduction
West Virginia passed a law to protect equality and safety in women’s sports by making sure competition stays separated by biological sex. This is common sense. Men and women are different — a reality long acknowledged by the Supreme Court.
But the law was challenged by B.P.J., a biological male who identifies as female and wants to play on girls’ sports teams. The Fourth Circuit sided with B.P.J., claiming that defining sex biologically is discrimination based on gender identity.
Now the case is before the Supreme Court. While most of the focus will be on Title IX and Equal Protection arguments, Mountain States Legal Foundation (MSLF) filed an amicus brief highlighting a different and critical issue: the First Amendment.
Redefining “sex” to include gender identity doesn’t just change sports — it threatens free speech. If a biological male can demand access to the women’s team, the same reasoning will be used to demand preferred pronouns, titles, and forced affirmation of gender identity in schools.
That is compelled speech, and it violates the Constitution.
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Background
For decades, the Constitution, Title IX, and Supreme Court precedent have all treated “sex” as an objective, biological reality. Title IX was passed in 1972 with that understanding — to protect women’s opportunities, not erase biological differences. Its text and regulations make clear that sex is binary, and even explicitly allow separation by sex in sports, locker rooms, and housing.
The Fourth and Ninth Circuits abandoned this history and twisted the meaning of “sex” to fit modern gender identity ideology. They claimed that relying on biology is a cover for discrimination. But that’s not true — it’s the only faithful reading of the law and a recognition of scientific reality.
This redefinition creates serious problems. Anti-harassment laws were designed to stop truly severe misconduct in schools. But if simply acknowledging biological facts — like using accurate pronouns or keeping sports separated by sex — is treated as “harassment,” then schools will be forced to punish speech that recognizes reality.
That means students, teachers, and coaches will be forced to use language they don’t believe, turning schools into places of ideological conformity instead of open learning.
What’s at Stake?
This case is about more than just who plays on which team. It is about whether objective reality still matters in the law, and whether the government can force Americans to deny that reality through compelled speech and ideologies.
The integrity of Title IX and the future of women’s athletics are on the line. Recognizing the physiological advantages of male athletes is essential to protecting equality of opportunity for women.
If the Fourth Circuit’s decision stands, both Title IX and the Equal Protection Clause will be transformed into tools of ideological coercion. Schools will be required to prioritize gender identity over biological sex, compelling teachers and students to use words they don’t believe. That violates the First Amendment principle that no government official can force Americans to accept an official ideology.
The consequences are already clear:
- Teachers have been punished or even fired for refusing to use preferred pronouns.
- Students have been disciplined for expressing the view that there are only two genders.
- Middle schoolers have faced sexual harassment complaints just for using biologically accurate pronouns.
If left unchecked, this will only get worse. The courts are setting the stage for a system where ideology replaces science, and conscience is crushed by government mandate.
That’s why MSLF is urging the Supreme Court to step in. The Court must reaffirm that “sex” means male and female, as it always has. Doing so protects not only equality of opportunity in women’s athletics, but also the fundamental right of every student and teacher to speak the truth without being forced to say something they do not believe.
West Virginia v. B.P.J. Timeline
- April 2021: West Virginia enacts the “Save Women’s Sports” Act, requiring schools to designate sports teams based on biological sex determined at birth.
- May 26, 2021: B.P.J., a transgender girl, files a lawsuit through her mother in the U.S. District Court for the Southern District of West Virginia, challenging the law under Title IX and the Equal Protection Clause.
- July 21, 2021: The district court grants a preliminary injunction, blocking enforcement of the law against B.P.J.
- January 5, 2023: The district court grants summary judgment to the defendants (West Virginia and others) on both Title IX and Equal Protection claims, dissolving the injunction.
- April 16, 2024: The Fourth Circuit rules in favor of B.P.J. on the Title IX claim and vacates the district court’s judgment on the Equal Protection claim, with Judge Agee dissenting.
- July 11, 2024: West Virginia petitions the U.S. Supreme Court for certiorari.
- September 19, 2025: MSLF files an amicus brief urging the Supreme Court to weigh in and reaffirm that “sex” means male and female, as it always has.
