On Friday, September 19, 2025, the Equal Protection Project filed two amicus curiae, or “friend of the court,” briefs before the U.S. Supreme Court. One in a case called Little v. Hecox, and the other in a case called West Virginia v. BPJ.
Both cases concern transgender women (men) challenging state laws limiting participation in women’s sports to biological women (women).
Even a decade or two ago if you told someone this issue would be controversial someday they likely wouldn’t have believed you.
Welcome to 2025.
Compared to the biological understanding of sex, the development of “gender identity” is a relatively recent development. It all began in leftist academic and medical circles for the purpose of developing therapeutic treatments for persons suffering from gender dysphoria, or psychological distress associated with a person’s biological sex not matching their internal sense of their “real” sex.
In that therapeutic setting, objectively verifiable biological evidence was, by definition, of limited relevance: blood tests, CAT scans, and other diagnostic tools that guide treatment of physical illness do little to resolve a patient’s psychological illness.
But these two cases present the Court with an entirely different context: drawing clear, fair lines for participation on competitive sports teams designated for women, based on the concrete and measurable definition of sex, in order to protect equal opportunities for female athletes.
While fluid subjective perceptions of “gender” may have replaced concrete biological categories in many academic and medical quarters, both the Fourteenth Amendment’s Equal Protection Clause, and Title IX of the Education Amendments of 1972, rely on stable reality-based categories.
No one in 1866 spoke of a person’s sex being “assigned at birth,” as if it were a matter about which there could be some doubt.
No one imagined that properly classifying a person as a woman or a girl turned on her level of circulating testosterone, particularly given that the hormone testosterone was not identified and isolated until the 1930s.
No one spoke of men “transitioning” to become women, and then perhaps “transitioning” back to become men again, as if one’s sex were merely a social or cultural costume.
Nor did anyone use the term “gender” to describe “a person’s sense of being male, female, neither, or some combination of both.”
Instead, “gender” was simply another term for a person’s biological sex, either male or female, but in either case fixed and permanent.
Equal protection jurisprudence has thus always recognized that classifications must be anchored in reality. That is to say, differential treatment must be based on meaningful differences. Relatedly, Title IX’s entire purpose was to give women an equal playing field.
Congress recognized that equality requires laws to account for real differences, not pretend they do not exist. Acknowledging biological differences does not demean women. On the contrary, it is the condition of their legal equality.
By creating female-only teams, Congress ensured that women would have a meaningful chance to compete and excel in sports. Before 1972, women were not absent from athletics because of lack of interest, but because of systemic barriers.
Within a single generation, women’s participation in sports skyrocketed. By 1980, just eight years after Title IX, the number of girls in high school sports had risen to nearly 2 million, and by 2019 it reached over 3.4 million. In colleges, female athletes expanded from 30,000 in 1971 to over 215,000 today.
If biological males are permitted to compete on women’s sports teams, the result is not greater equality but the effective exclusion of women. This was the entire problem Title IX was meant to fix.
If “women” and “girls” are defined by biological attributes, then “transgender women” are not women. And nothing in the constitutional or statutory text, history, or logic justifies a court in holding that a person’s gender embarrassment, hurt feelings, or subjective feelings of distress should warrant invalidating biology.
The Court should recognize protect women’s rights.
Reminder: we are a small organization going up against powerful and wealthy government and private institutions devoted to DEI discrimination. Donations are greatly needed and appreciated.
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Timothy R. Snowball is a Senior Attorney at the Equal Protection Project.
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