West Virginia v. B. P. J. · ¶213

The majority is correct that Bostock does not require finding a Title IX violation in this specific context. See ante, at 13–14 (limiting discussion of this issue to “the sports context” and holding that Bostock is “not relevant” to that specific “statutory and factual context”). That is because drawing this distinction based on sex, in the form of creating sex- separated sports teams, is not unlawful under Title IX through the Javits Amendment and its accompanying regulations, given B. P. J.’s concessions. That does not mean, though, that Bostock has nothing to say about Title IX more broadly, nor do I understand the majority to say otherwise. Bostock, again, rested on two separate inquiries: first, whether sex was a but-for cause of the challenged action; and second, whether the challenged action constitutes unlawful discrimination. Bostock answers only the first question. It does not…

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