THE SUPREME COURT’S OCTOBER 2025 TERM BEGINS—SOME CASE HIGHLIGHTS
INTRODUCTION
The October Term of the United States Supreme Court features oral argument on cases that include the conflict between the objectives of Title IX and the social contagion of “gender identity,” which has seen a conflation of sex and “gender identity” in Circuit Courts of Appeal. Both the Fourth and Ninth Circuits have held that such laws discriminate on the basis of “sex” in violation of the Equal Protection Clause and related law. It is time that the Supreme Court settled this divisive issue fully and finally, as state legislatures have attempted to protect and preserve the advances in women’s sports competition at all levels that Title IX sought to protect for the ages. I will set up the argument of the state of West Virginia in defending its legislative decision to prohibit biological males from competing in women’s competitive sports. The ACLU is attempting to prevent a similar Idaho case from being decided in the Supreme Court by arguing that the case was “mooted” after the confused plaintiff who identifies as a female recently dismissed his/her case in the District Court after a partial win in the wacky Ninth Circuit. These cases will be decided, and the Supreme Court will likely continue to hear the Idaho case since it granted certiorari, and no one gets to game the docket. First, let’s look at the West Virginia case set for argument in the current Term;
WEST VIRGINIA V. BPJ Docket Number 24-43
West Virginia’s legislature, speaking for its people, passed the West Virginia Save Women’s Sports Act to protect women’s sports at all levels in that state. BPJ, a male identifying as a woman, secured a victory in the Fourth Circuit Court of Appeals, which held that sex and gender identity were the same and invalidated, in large part, the legislative objectives of the state’s lawmaking body. The Supreme Court granted review, and the case is set for argument in this Term. Here are the issues presented:
(1) Whether Title IX of the Education Amendments of 1972 prevents a state from consistently designating girls’ and boys’ sports teams based on biological sex determined at birth; and (2) whether the Equal Protection Clause of the 14th Amendment prevents a state from offering separate boys’ and girls’ sports teams based on biological sex determined at birth.
I can say it with no more authority than the West Virginia Attorney General in its Opening Brief. It appears common sense will carry the day.
“More than fifty years ago, Title IX promised a new beginning for women’s sports—one built on equal opportunity. For half a century, that promise was kept. Women playing college sports rose from just over 15% of all athletes before Title IX to more than 50% today. Schools went from an average of two women’s sports teams to more than eight. And female participation in high school sports grew by more than 1,000%. Altogether, ‘Title IX had enhanced … women’s opportunities to enjoy the thrill of victory, the agony of defeat, and the many tangible benefits that flow from just being given a chance to participate in school athletics.’ Neal v. Bd. of Trs. of Cal. State Univs., 198 F.3d 763, 773 (9th Cir. 1999). That promise is now in danger. Male athletes identifying as female are increasingly competing in women’s sports, erasing the opportunities Title IX ensured. Women and girls have lost places on sports teams, surrendered spots on championship podiums, and suffered injuries competing against bigger, faster, and stronger males. For too many women and girls, the ‘thrill of victory’ is gone.
Many have responded. The U.S. Olympic and Paralympic Committee, the NCAA, and other major athletic organizations have said that only female athletes can compete in women’s sports. So have 27 States. These laws and policies do not ban anyone from competing in sports. Rather, they preserve hard-won equal athletic opportunities for both sexes while ensuring females enjoy safe, fair competition in women’s sports. The State of West Virginia acted to protect women’s sports, too. Mirroring Title IX’s regulations, West Virginia’s Save Women’s Sports Act says male students can compete on male and co-ed teams but may not compete on girls’ teams in school sports involving competitive skill or contact. The Act defines ‘male’ and ‘female’ by referencing the student’s reproductive biology and genetics at birth. It doesn’t consider gender identity.
The Fourth Circuit rejected West Virginia’s common-sense effort. The court read Title IX to say that West Virginia must allow Respondent B.P.J.—a male student who identifies as female—to compete in girls’ track and field. Playing sports on a boys’ or co-ed team was dismissed as no option. And according to the Fourth Circuit, West Virginia’s law might violate the Constitution’s Equal Protection Clause, too. Even though the court recognized West Virginia had the right ‘to police the line drawn between [boys’ and girls’] teams,’ it said West Virginia couldn’t focus on biology (rather than gender identity) in doing so. In short, the Fourth Circuit reasoned that both the Constitution and Title IX compelled West Virginia to treat sex and gender identity as synonymous when it comes to sports. That approach erases the line between men’s and women’s athletics. Sex affects athletic performance; gender identity does not. If the court below were right, then Title IX’s role in preserving girls’ sports opportunities would end.
Yet nothing in Title IX invalidates the Act. Title IX’s text forbids sex discrimination—not sex distinctions. Males identifying as female are not similarly situated to females in athletic competition. The Act thus advances, rather than offends, Title IX’s requirement of equal opportunity for the two sexes.
The Act implicates ‘fierce scientific and policy debates’ that elected legislators are best able to resolve. United States v. Skrmetti, 145 S. Ct. 1816 (2025). The Fourth Circuit nullified West Virginia’s legislative solution, undermined Title IX, warped the Equal Protection Clause, and hurt women and girls.”
I will follow this case closely, as we all should. Gender identity—a subjective and, in many cases, a gamed and pretextual status—has no place on any competitive sports field. Any legislature should have the ability to regulate this within its borders—especially when women are not only harmed in their morale and desire to compete but are physically harmed by males posing as women in contact sports. I suspect West Virginia will prevail.
AN IDAHO PLAINTIFF “IDENTIFYING” AS A WOMAN ATTEMPTS TO GAME THE COURT AND AVOID A RECKONING
Lindsay Hecox is a biological male who identifies as a female and is currently 24 years old. He challenged Idaho’s Fairness in Women’s Sports Act enacted for reasons identical to the West Virginia legislation set for argument. He secured an injunction in the District Court allowing him to try out for Boise State University’s Women’s Track and Field Team. The Ninth Circuit Court of Appeals sustained the injunction holding that discriminating against transgender athletes is sex-based discrimination in violation of law and the Equal Protection Clause. The Idaho Attorney General sought review in the Supreme Court, and that Petition was granted this summer. In the interim, Hecox had failed to make the track team and instead enrolled to play women’s soccer at the school. Apparently sensing disaster at the Supreme Court, the ACLU and Chase Strangio, the trans “male” ACLU lawyer who lost the Skrmetti case (2025 SCOTUS decision upholding a Tennessee law prohibiting gender-affirming medical “care” for minors), attempted to short-circuit a ruling by the Supreme Court by voluntarily dismissing his District Court case and pledging “not to compete in women’s competitive sports in Idaho” due to personal reasons. Declaring that the case was now “moot,” the ACLU wants to run away. The Idaho Attorney General is opposing that status and urging the Court to review the case on the merits. I suspect the Court will either rule or superimpose its reasoning in the West Virginia case on all similar legislative Acts. The cases should be combined for argument, and it is time that this charade was shut down. It is clear Hecox is not a genuine plaintiff and cannot say “never mind” after the Court has granted a rare certiorari petition on a compelling legal issue. The question presented is set forth below as framed by the Idaho Attorney General:
“Women and girls have overcome decades of discrimination to achieve a more equal playing field in many arenas of American life—including sports. Yet in some competitions, female athletes have become bystanders in their own sports as male athletes who identify as female have taken the place of their female competitors—on the field and on the winners’ podium. The Idaho Legislature addressed that injustice by enacting the Fairness in Women’s Sports Act, which ensures that women and girls do not have to compete against men and boys no matter how those men and boys identify. The Act—one of 25 such state laws around the country—is consistent with longstanding government policies preserving women’s and girls’ sports due to the ‘average real differences’ between the sexes. Clark ex rel. Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th Cir. 1982). Breaking with this Court’s precedents, its own case law, other circuit decisions, and biological reality, the Ninth Circuit panel here upheld an injunction against the Act because it prevents ‘transgender women and girls’—meaning males who identify as women and girls—from competing in ‘women’s student athletics.’ The question presented is whether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the Equal Protection Clause of the Fourteenth Amendment.”
The case is not yet set for argument as the Court considers the recent suggestion of the “mootness” charade produced and directed by the ACLU. We will follow the progress of this case, which is still currently on the docket, at least until the Supreme Court determines if it is indeed moot.
CONCLUSION
It has been my contention, supported by precedent, that the recognition of biological differences in the sexes does not run afoul of the Equal Protection clause in the realm of competitive sport. Title IX’s objectives are meaningless if any male, suppressing testosterone, declares that he is in fact a woman. The genetic and biological effects of puberty on the structure of the muscles and bones are undeniable. This theater needs to stop, and state legislatures should have the ability to put an end to this. Transgenderism is contrary to science, common sense, and the dreams of women to compete against other biological women on, yes, a level playing field. The Equal Protection Clause is simply not implicated in this discreet arena, and the Supreme Court needs to redefine “discrimination based upon sex,” which it has broadened in previous cases dealing with workplace discrimination. This is not the same legally or conceptually. We will see.
Mike Imprevento
October 6th, 2025
