Skip to content

SCOTUS Now Has a Chance to Protect Women's Sports

The Supreme Court should make it clear that the West Virginia law protecting women’s sports should be enforced.
Christiana Kiefer
The Supreme Court should make it clear that the West Virginia law protecting women’s sports should be enforced

Men and women are physically different. This fact can be easily proven not only by biblical truth, but also by scientific evidence. And this evidence is especially clear in the world of sports.

Many states have relied on this fact to pass laws protecting women’s sports, and Alliance Defending Freedom is now asking the Supreme Court to affirm that female athletes deserve equal opportunities.

An expert report on male athletics advantages authored by Dr. Gregory A. Brown, an exercise science professor at the University of Nebraska, shows some of the many reasons why male athletes shouldn’t compete against females.

Brown found that male athletes have many inherent advantages over females including greater height and weight, larger and stronger bones, larger muscles, and higher rates of metabolizing and releasing energy. And the report also shows that these advantages exist before puberty and even after testosterone suppression.

Male athletic advantages result in large discrepancies between the performance of men and women. In 2017, for example, more than 5,000 males ran 400-meter times that were faster than the personal bests of female Olympic gold medalists Sanya Richards-Ross and Allyson Felix.

The false claim that men can change their sex and somehow become women has a real human cost. Male athletes have unfairly taken opportunities to win championships, medals, athletic scholarships, and more from women, and we cannot allow it to continue.

It was this basic understanding of the differences between men and women that led to the creation of women’s sports in the first place. And it is that same understanding that has led 18 states to pass laws protecting female athletes from having to compete against males.

In 2021, West Virginia passed a law to protect women’s sports—and it was one of the most comprehensive women’s sports laws in the country.

It designates women’s teams for female athletes from middle school through college, and it provides a legal remedy for female athletes who have been unfairly displaced by males. And laws like West Virginia’s affirm why we have women’s and girls’ sports: equal opportunity.

But the law threatens the political aims of the American Civil Liberties Union, which is why the ACLU is challenging it in court.

Initially, a federal district judge agreed to temporarily block West Virginia from enforcing the law against the ACLU’s client, a male athlete seeking to compete against females. Alliance Defending Freedom filed a motion to intervene in the case on behalf of Lainey Armistead, who was playing collegiate soccer at West Virginia State University, and the judge allowed ADF to intervene.

In January 2023, the judge reversed course and ruled in favor of the West Virginia law. He lifted the pause he had put in place, allowing the law to go fully into effect. The district court found the law to be completely constitutional, and it made the correct decision to protect female athletes like Lainey.

But the ACLU refused to accept this clear ruling. It filed an appeal with the U.S. Court of Appeals for the 4th Circuit asking the court to let its client try out for a girls’ spring track team.

The 4th Circuit inexplicably agreed to pause enforcement of the law against the ACLU’s client without providing any factual or legal basis for its decision. It never addressed the lower court’s reasons for upholding the law or Lainey’s arguments defending the law.

The appellate court has not yet issued a final decision on the law. Those arguments are still to come. But by agreeing to pause enforcement of the law against the ACLU’s client, the court has created massive confusion among West Virginia schools about how to enforce the law.

The West Virginia legislature passed the women’s sports law, the governor signed it, and a federal district court affirmed it is fully constitutional. There is no reason that the law should not be enforced, and the 4th Circuit wrongly cast doubt on the law with its decision to pause its enforcement.

ADF is now asking the Supreme Court to reverse the 4th Circuit’s decision and make it clear that the West Virginia law should be enforced.

For the first time, the Supreme Court has an opportunity to protect fairness in women’s sports from today’s threats. It’s time for the Court to follow biological reality and ensure equal opportunities for female athletes.

Christiana Kiefer
Christiana Kiefer
Senior Counsel
Christiana (Holcomb) Kiefer serves as senior counsel with Alliance Defending Freedom, where she is a key member of the Center for Conscience Initiatives.