Read the Supreme Court Decision Upholding Bans on Transgender Athletes in Women’s Sports

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WEST VIRGINIA v. B. P. J.

Opinion of SOTOMAYOR, J.

Here, B. P. J. argues that the State’s sex classification fails heightened scrutiny not only because it does not fit her subclass, but also because it operates as a categorical exclu- sion, much like the classifications in Caban, Virginia, and Trimble. Here, unlike in Nguyen, there are no procedures for her to follow to prove that she is similarly situated to cisgender girls and thus able to participate on the girls’ team. Because this Court’s equal protection analysis of sex classifications has generally considered whether the classi- fication fits discrete subclasses and the extent to which sub- classes are burdened, it matters if B. P. J. is right about the purported problems she identifies. At this stage, the Court therefore needs additional facts to assess whether B. P. J. is in fact correct, and whether, as a result, the State has “unnecessarily” refused her an exception.

Santana, 582 U. S., at 63, n. 13. In addition, while a State generally cannot rely on “mere” “administrative convenience” to justify the use of a sex classification, Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142, 152 (1980), the Court has recognized that “[i]t may be that there are lev- els of administrative [in] convenience,” ibid., that could perhaps support a showing that the State has not denied an exception “unnecessarily and overbroadly,” Morales-Santana, 582 U. S., at 63, n. 13. Whether any of these justifications hold true here depends on factual findings that have not been made and, because of the Court’s decision today, never will be. 7 In contesting whether these facts matter in the equal protection anal- ysis, the parties at points discuss whether a challenge like B. P. J.’s should be characterized as “as applied”” or “facial.”” As B. P. J. argues, in most cases, such as here, this debate is largely one of “semantics.” Brief for Respondent in No. 24–43, p. 46. It is true that some equal pro- tection challenges, if successful, may mean that a given classification is impermissible in all applications and therefore resemble what this Court has called a “facial” challenge. That may be so, for instance, when the legislature has not identified an important or legitimate governmental interest. See, e.g., Romer v. Evans, 517 U. S. 620 (1996). In other chal- lenges, though, the equal protection problem is not with the classification as such, but rather with its overbreadth or the way the classification’s lines have been drawn. As a result, the classification may constitution- ally be applied to some individuals, see, e.g., Lehr v. Robertson, 463 U. S.