Published on: October 28, 2026
An ATIXA Tip of the Week by Brett A. Sokolow, J.D., and Christina Graziano, J.D.
In a recent Tip of the Week, W. Scott Lewis, J.D., and Kimberly Pacelli, J.D., M.Ed., addressed the Supreme Court’s decision in West Virginia v. B.P.J. (which we’ll refer to below as simply BPJ), dissecting what the Court held and what the decision means for transgender student participation in athletics. What the Court may not have answered, though, is what this decision means beyond athletics participation.
Some have characterized the Court’s discussion of biological sex as limited to the particular athletics framework before it. Others have argued that the Court’s reasoning necessarily goes further. ATIXA’s view is that practitioners should expect BPJ to influence Title IX analysis beyond athletics, while recognizing that the Court has not yet told us precisely how far that influence extends.
Since June, we’ve been getting questions about what those implications are. Here are some of the common questions and our best approximation at answering them, knowing that no one really has a crystal ball that shows where the Supreme Court may go on this.
Q: BPJ arose in athletics. How much of the decision extends beyond athletics?
A: We think the Court’s reasoning is likely to extend further than the holding. The holding is about athletics. Title IX and its regulations expressly permit sex-separated athletic teams, and that framework was central to the Court’s decision.
But the Court also discussed what “sex” means under Title IX, and a majority tied that term to biological sex. It is difficult to imagine litigants leaving that language on the athletic field. We should expect it to appear in cases involving bathrooms, locker rooms, housing, access to programs, harassment, and other areas in which sex or gender identity becomes relevant. It could also appear in guidance documents or regulatory action from federal agencies.
Does BPJ decide those cases? No. Does it affect how they will be argued? Almost certainly.
Q: Why is gender identity not itself protected as a manifestation of sex, though sexual orientation likely is?
A: In BPJ, the Court treats gender identity and biological sex as distinct concepts.
This leaves significant room for Bostock and traditional sex-stereotyping principles to continue doing work. Sexual orientation necessarily implicates the sex of the individual and the sex of the person to whom that individual is attracted. Gender identity presents a somewhat different analytical question after BPJ, because the Court has now drawn a distinction between biological sex and gender identity. That distinction may affect how a claim is framed, but it does not mean discrimination or harassment involving a transgender person necessarily falls outside Title IX.
Q: If state law protects gender identity, can that protection be incorporated into policy? And if state law is agnostic, may an institution still protect gender identity?
A: Yes, assuming applicable law permits it.
Title IX is not the entirety of an institution’s nondiscrimination obligations. If state law protects gender identity, that protection needs to be reflected in institutional policy and practice, whether that is the “Title IX” policy or another, broader nondiscrimination policy. If state law does not speak to the issue, an institution may choose to provide gender identity protections if doing so aligns with its mission and other applicable legal obligations.
Where those protections create competing or potentially competing legal claims, consult legal counsel.
Q: If sex under Title IX means biological sex, what protections remain for transgender, nonbinary, and transitioning individuals?
A: Potentially quite a lot, even beyond the state law discussion above.
Narrowing the meaning of sex to biological sex does not answer the separate question of whether discrimination occurred on the basis of sex. In fact, biological sex may be the very thing that makes the conduct discriminatory.
If someone is excluded, harassed, or effectively denied access because they do not conform to another person’s assumptions about how someone of their biological sex should look, act, dress, speak, present, or be addressed, then sex remains part of the causal analysis.
The person may be transgender, nonbinary, or transitioning, but the Title IX question is whether the respondent allegedly treated them differently because of sex. Adhering or not adhering to stereotypical expectations rooted in biological sex is the basis of almost all non-athletic gender identity-related Title IX complaints, regardless of whether “gender identity” is specifically labeled as a protected classification in policy.
Q: How does that analysis apply to someone who is transgender?
A: Consider Ronni. Ronni is transgender. Ronni experiences exclusion from an educational program because Ronni does not conform to the charged respondent’s stereotypical assumptions about how someone of Ronni’s biological sex should look or act.
Ronni’s transgender status helps explain the factual context. But the Title IX analysis asks a different question: why did the respondent exclude Ronni? In that analysis, biological sex is the yardstick.
If the answer is that Ronni did not conform to expectations associated with Ronni’s biological sex, then sex is part of the reason for the exclusion. Therefore, Title IX applies (in almost all jurisdictions that have examined this specific question, with the exception of the states in the 11th Circuit, which is the outlier for now).
Courts have long recognized sex-stereotyping theories of discrimination, and BPJ does not overrule those cases. Supreme Court Justice Sonia Sotomayor expressly made that point in explaining why the Court’s athletics decision should not be read to resolve every other Title IX question involving transgender individuals.
Q: Without gender identity as a protected class, can an effective denial or exclusion based on failure to conform to sex stereotypes still fall within Title IX’s protections?
A: We think so.
Gender identity does not necessarily need to operate as the protected class for gender nonconforming people to remain protected from discrimination or harassment under Title IX. The analysis therefore should not stop at: “gender identity is not independently protected under federal Title IX.”
The better question: what caused the exclusion?
Q: What happens when there are competing claims of sex discrimination?
A: We wait for the Court to decide.
We are still several sticky wickets away from the Court resolving many of these questions. Is a cisgender person excluded, disadvantaged, or otherwise subjected to sex discrimination by the presence of a transgender person? Is a transgender person subjected to sex discrimination when excluded?
BPJ does not resolve how Title IX applies when those competing claims arise outside the athletics context. One fascinating possibility that the Court may face is the conclusion that when a trans person uses a restroom that aligns with their gender identity, Title IX guarantees their right to do so, and guarantees the right of cis people to not have to share a restroom with someone whose biological sex does not match the sign on the door. Most pundits posit those as mutually exclusive rights, but another read is possible. All restroom users have rights that implicate Title IX. Put another way, is the problem about access or about how we build and label restrooms? Should rights be in jeopardy owing mostly to anachronistic bathroom construction? There are times when the authors covet the influence the Court has on social issues and other times when we do not envy their task. We do not envy this one or the analytical gymnastics that will be required to resolve it.
Q: What does BPJ mean if you have discrimination complaints from cisgender women who allege that allowing transgender students to participate on their team discriminates against them?
A: That argument has more traction after BPJ.
The Court has now held that Title IX permits schools to define girls’ and women’s athletic teams by biological sex. A cisgender woman alleging that she is being discriminated against because an institution permits transgender women to participate on her team therefore has a stronger doctrinal basis for that claim than she did before BPJ.
But BPJ establishes what Title IX permits, not necessarily what Title IX requires.
Where state law independently protects gender identity, an institution may face a federal sex-discrimination claim from one direction and a state-law gender-identity discrimination claim from the other. Another facet of this issue for which we do not envy is the Court’s task.
If that complaint lands on your desk, consult legal counsel.
Where Does BPJ Leave Us?
This isn’t as simple as blue state inclusion and red state exclusion. For example, we can foresee cases where a blue state has gender identity protections and includes trans or non-binary athletes on its teams. What happens when those teams play an away game in a red state that not only lacks such protections, but bars athletes from competing outside of their biological sex? BPJ gives us greater clarity in athletics and considerably less clarity everywhere else, but it doesn’t even answer all athletics questions related to gender, as shown in the example above. Its treatment of biological sex does not eliminate sex stereotypes and sex-based expectations from the Title IX analysis. Will Title IX’s provisions that allow sex-separated bathrooms track with the Court’s analysis that Title IX similarly allows sex-separated teams? What about bathrooms that aren’t in schools, which Title IX does not control?
The harder cases going forward will ask what happens when both sides claim sex discrimination, when federal and state protections do not align neatly, and when distinctions the Court has permitted in athletics are asserted in contexts where Title IX does not expressly authorize sex separation. Those cases are coming.
Start With the Conduct
As school and college administrators struggle with these questions now, we can’t just defer until the Court finally gets around to answering them. So, we need to ask why the person was treated differently and determine whether sex, sex stereotypes, or sex characteristics are part of that explanation. Then we must ask whether Title IX permits the particular distinction in the context before us.
When those questions get complicated, bring your legal counsel into the conversation, but know that no matter what, you’ll be playing referee in a game whose rules have yet to be written.
The law and policy experts at ATIXA and TNG can help you think through the Title IX implications, policy considerations, and practical next steps. Send us an email.