West Virginia v. B. P. J. · ¶157

West Virginia’s decision to separate sports teams based on an individual’s sex identified at birth is a clear sex classification subject to heightened scrutiny. West Virginia justifies the classification by citing two interests: ensuring (1) competitive athletic opportunities and (2) safety in participation for women and girls in sports. As the majority stresses and no one disputes, when it comes to sex identified at birth, males generally have an inherent athletic advantage over females in playing sports. B. P. J., however, contends that this generalization does not hold true for a discrete, easily identifiable group: transgender girls who have never experienced an endogenous male puberty, who receive gender-affirming treatment, and who are, she says, thus similarly situated to cisgender girls. For that group, she argues, neither of West Virginia’s interests is furthered by excluding…

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