Employment Implications of the Supreme Court's Decision Impacting Transgender Athletes
The Supreme Court's June 30, 2026, decision under Title IX in West Virginia v. B. P. J. upholds state laws limiting girls' and women's school sports to biological females, but it does not disturb Bostock v. Clayton County's holding that Title VII's prohibition on sex discrimination protects transgender employees in the workplace. Although no Title VII employment claim was before the Court, this opinion is nonetheless relevant to employers because it sheds light on how the Court continues to view the protection of transgender employees in the workplace.
Specifically, the majority of the Court distinguishes Bostock from the Title IX and school-sports context without questioning or narrowing its Title VII holding. Employers should continue to treat Bostock as controlling law under Title VII. At the same time, the Court's separate equal protection analysis reflects continued skepticism toward heightened legal protections for gender identity, as does the EEOC's 2025 rescission of its 2024 Enforcement Guidance on Harassment in the Workplace that rolled back certain Biden-era LGBTQ+ transgender employee bias enforcement protections.
Background
The case began when B. P. J., a transgender girl, sued West Virginia after school officials barred her from the girls' cross-country and track teams under the state's Save Women's Sports Act, alleging violations of Title IX and the Equal Protection Clause.
The Supreme Court held that Title IX permits schools to maintain separate sex-based sports teams and does not require exceptions for transgender athletes, and that the state laws before the Court did not violate the Equal Protection Clause reasoning that the laws are substantially related to the States' important interest in athletic safety and competitive fairness.
The Majority's Treatment of Bostock
B.P. J. argued that Title VII and Bostock supported reading Title IX to require schools to allow transgender athletes on girls' teams. The majority rejected that argument on four grounds: (1) Title VII governs employment while Title IX, in this context, governs sports, and "the two factual contexts are vastly different"; (2) the two statutes are themselves "vastly different," citing Jackson v. Birmingham Board of Education; (3) Title VII generally requires sex-blind treatment in the workplace, whereas Title IX expressly authorizes separate sex-based sports teams, making the only live question whether schools may limit those teams to biological females; and (4) that question "was not addressed by Bostock, as the Court expressly noted," quoting Bostock's own statement that it did not purport to address "bathrooms, locker rooms, or anything else of the kind."
The majority's holding on this point is narrow: "Title VII and Bostock are not relevant in this very different statutory and factual context." Notably, the majority does not reinterpret, question, or limit Bostock's Title VII holding—it accepts that holding as a given and simply declines to extend it beyond the employment setting for which it was decided.
Concurring Opinion Also Reaffirms Bostock
A concurring opinion also affirmatively stated that Bostock "supports, not undermines, the Court's conclusion" and reiterates Bostock's core holding: that discriminating against an employee for being transgender necessarily discriminates against that employee at least in part "because of" biological sex, satisfying Title VII's causation standard even though sex need not be the sole cause of the adverse action. The concurring opinion explains that the majority's Title IX holding is fully consistent with Bostock because Bostock "took care to underscore" that it did not address "sex-segregated bathrooms, locker rooms, and dress codes." The opinion closes by stating that, "as in Bostock," the Court today "reach[es] the result the law demands"—language that reads as a reaffirmation of Bostock's continued force in the employment context.
The Dissent on Bostock's Reach
The dissent agrees that B. P. J.'s Title IX claim fails but treats Bostock as controlling on the causation question and explains that Bostock "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"—and that Bostock resolved only the first question. The dissent states that "Bostock thus teaches that sex is a but-for cause" of B. P. J.'s exclusion, but that Bostock "has nothing to say about whether this discrimination based on sex is unlawful" in the sports context specifically. Outside athletics, the dissent notes, Title IX still prohibits sex-segregated classes and extracurricular activities, harassment, and discrimination in admission and expulsion, and actions such as expelling a student for being transgender "would qualify as sex discrimination under Bostock," with the same result that would follow "in the employment context for the purposes of Title VII."
Justice Jackson's separate dissenting opinion goes further, stating directly that "the holding of Bostock v. Clayton County. . . plainly applies to Title IX," citing Justices Gorsuch's and Sotomayor's opinions in agreement. She applies Bostock's but-for causation logic to argue that Title IX's definition of "sex" may not be limited to sex assigned at birth, drawing an express analogy to Title VII sex-stereotyping cases such as Price Waterhouse v. Hopkins.
Practical Implications for Employers
Employers should continue to treat discrimination against employees on the basis of transgender status as sex discrimination prohibited by Title VII. Because the Bostock statements in B. P. J. are dicta (or not legally binding), a future case presenting a live Title VII question could prompt further refinement. Employers should consult counsel before making policy changes based on assumptions about Bostock's durability.
Stinson regularly advises employers on complying with state and federal employment laws. Employers with questions about how this decision may affect their workplace policies are encouraged to contact Amy Conway, Kelly Maxwell, Laura Raines, Bernadette Sargeant, Stephanie Scheck, and Sara Welch or the Stinson LLP attorney with whom they regularly work.
