Washington, D.C., June 30, 2026 (GLOBE NEWSWIRE) -- The U.S. Supreme Court decided in West Virginia v. B.P.J today that Title IX allows schools to maintain separate women’s and men’s sports teams defined by biological sex. The New Civil Liberties Alliance filed an amicus curiae brief calling for that result, arguing that when Title IX prohibits discrimination “on the basis of sex,” it means biological sex.
The U.S. Court of Appeals for the Fourth Circuit ruled in this case that West Virginia’s Save Women’s Sports Act, which prohibits biological males from competing on girls’ and women’s school sports teams, violated Title IX by discriminating based on “gender identity.” In doing so, the Fourth Circuit stretched the meaning of Title IX to include gender identity, rather than protecting only against discrimination based on biological sex, as the States, Congress, and the general public would have understood at the time of Title IX’s enactment. The Supreme Court reversed the Fourth Circuit’s error, which flew in the face of core constitutional principles.
As NCLA argued, Justice Neil Gorsuch explained in his concurring opinion that Congress passed Title IX through its authority under the Spending Clause in Article I of the Constitution. Precedent requires Congress to clearly state any conditions it sets for States and their instrumentalities to receive federal funding.
“Nothing in Title IX clearly and unambiguously alerts funding recipients that they are prohibited from restricting a school-sponsored sports team to biological women or girls, “Justice Gorsuch wrote. “Just consider the statute’s terms and the evidence before us about their original meaning. Adopted in 1972, Title IX generally prohibits discrimination ‘on the basis of sex.’ As it is now, the term ‘sex’ was commonly understood then to mean biological sex.”
NCLA released the following statements:
“Title IX means what it says: it prohibits discrimination on the basis of sex, not gender identity. Justice Gorsuch's concurrence correctly points out that if Congress wants to regulate a core area of state authority through conditions on its spending, it must do so clearly and unambiguously.”
—Andreia Trifoi, Staff Attorney, NCLA
“You can’t hide elephants in mouseholes—but here, there is no elephant. Title IX means what it says. Courts and agencies have no license to rewrite that plain text to match their policy preferences. That’s not interpretation—it’s legislation, and the Constitution assigns that job to Congress alone.”
—Casey Norman, Litigation Counsel, NCLA
For more information visit the amicus page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
Joe Martyak New Civil Liberties Alliance 703-403-1111 joe.martyak@ncla.legal
