On June 30, 2026, the U.S. Supreme Court decided West Virginia v. B.P.J., a pivotal ruling on transgender individuals’ rights to participate in competitive sport and to express their gender identity. The case centered on West Virginia and Idaho statutes that defined sex purely by biology, thereby categorically barring transgender women and girls from female athletic categories.  Plaintiff B.P.J., a transgender girl who began puberty blockers and cross-sex hormone therapy shortly after identifying as female in third grade, challenged her exclusion from middle school cross-country and track teams. The Court consolidated B.P.J.’s challenge with Little v. Hecox, which addressed Idaho’s identical statewide exclusion.

In its decision, the Supreme Court rejected respondents’ contention that a generalised ban is unconstitutional as applied to transgender girls—such as B.P.J.—who have never undergone endogenous puberty and whose development was shaped by puberty blockers or cross‑sex hormones. The Court explained, “the State is not constitutionally required to grant individualised exemptions to specific athletes or subclasses.” Granting exemptions, the Court noted, would cause “enormous practical and administrability problems,” requiring  judges without medical expertise to evaluate hormone effects against biological norms. The Court set aside B.P.J.’s proffered scientific evidence showing that trans-females on puberty blockers retain no competitive athletic advantage over biological females. The Court evaluated the challenge under intermediate scrutiny, a form of heightened scrutiny used by US courts for sex-based discrimination under the Equal Protection Clause. To withstand intermediate scrutiny, the sex-based classification “must serve important governmental objectives” and “be substantially related to achievement of those objectives”. The Court concluded that the state’s sex-based classification satisfied this standard by advancing safety, fairness, and equal opportunity for female athletes, reasoning that permitting biological males to compete disadvantages women by reducing their athletic success, roster spots, or medals.

In her dissent, Justice Sotomayor took issue with the Court leaving unresolved whether transgender girls like B.P.J. are similarly situated to cisgender girls, and whether a blanket classification is the right fit for promoting state interests in safety and fairness. Sotomayor argued that, amidst scientific uncertainty, the majority gave West Virginia conclusive deference by misapplying precedents, citing extra-record evidence, and ignoring critical context because it was legally inconvenient. It is worth noting that this decision stems from President Donald Trump’s February 2025 executive order on Title IX , which prompted sports organisations such as the IOC, the USOPC, and the NCAA to restrict transgender participation. Besides potential political influences, the decision highlights the critical flaw of intermediate scrutiny: its failure to balance competing interests.  The Court evaluated only whether the law was substantially related to achieving fair, safe, and equal opportunities for female athletes. Under this standard, courts do not determine whether a law curtails equality more than necessary, nor do they weigh public benefits against the costs inflicted on transgender athletes, including the loss of community, peer relationships, discipline, and belonging that come with team sports.

It is interesting to consider how this case might have been decided under the principle of proportionality adopted by the European Courts, such as the CJEU and the ECHR. Under proportionality, courts assess the suitability of a measure for achieving its objective, select the least restrictive option regarding the rights at stake, and balance those rights to avoid an unjustified sacrifice. In recent decisions – Deldits and Shipova – the CJEU protected gender identity as an expression of the fundamental rights to private life and personal integrity, applying proportionality to evaluate whether a rule imposed an excessive burden on the individual. Applying the proportionality test, while the laws banning transgender athletes from female sports are suitable to achieve legitimate goals—promoting equal athletic opportunities, safety and competitive fairness—it remains critical to assess whether these laws constitute the least restrictive means and whether a proportionate balance exists between social benefits and individual harm. The laws likely fail the least restrictive means test, since less harmful options, such as case-by-case assessments by schools using individualised approaches, would suffice. Transgender students could join teams matching their gender identity if schools determine participation would not compromise fairness or safety. Assessments should consider the student’s age, the sport (contact versus non-contact), competition level, gender-affirming healthcare history, and specific sex characteristics. Even if the laws had satisfied necessity, categorical exclusions fail proportionality in the narrow sense because a blanket ban imposes an excessive burden relative to the legislative objective. The pursuit of competitive fairness, safety, and equal athletic opportunities (including college scholarships) is essential for biological females. However, a proportionate balance cannot support a total ban across middle-school through college levels, regardless of physical characteristics, sport type, or competitive level.  In the U.S., sport holds immense social value, promoting physical and mental health by lowering anxiety and depression while enhancing social interaction through team competitions.

A more stringent standard of review, such as proportionality, might have led the Court to a less restrictive ruling, rather than upholding a generalised ban that entirely erases transgender athletes’ ability to participate in sport and fully express their gender identity.