West Virginia v. B. P. J.

JUSTICE GORSUCH, concurring.¶verify

I join the Court’s opinion and write to add two observations about Title IX.¶verify

First, “Title IX was enacted as an exercise of Congress’ powers under the Spending Clause.” Jackson v. Birmingham Bd. of Ed. , 544 U. S. 167, 181 (2005). That provision of the Constitution does not allow Congress to regulate conduct; instead, it only authorizes Congress to spend money. Medina v. Planned Parenthood South Atlantic , 606 U. S. 357, 370–371 (2025). Of course, Congress may seek to condition the funds it gives to others. Id ., at 365. But much as with any contract, a funding recipient must “ ‘voluntarily and knowingly'' assent to those conditions for them to bear any legal force. Id ., at 373 (quoting Pennhurst State School and Hospital v. Halderman , 451 U. S. 1, 17 (1981)). And for a funding recipient to provide that kind of assent, Congress must “clearly and unambiguously” specify the conditions it expects the funding recipient to follow. Medina , 606 U. S., at 373, n. 4; see also Pennhurst , 451 U. S., at 17, 25.¶verify

Nothing in Title IX clearly and unambiguously alerts funding recipients that they are prohibited from restricting a school-sponsored sports team to biological women or girls. Just consider the statute’s terms and the evidence before us about their original meaning. Adopted in 1972, Title IX generally prohibits discrimination “on the basis of sex.” 20 U. S. C. §1681. As it is now, the term “sex” was commonly understood then to mean biological sex. See, e . g ., Webster’s New World Dictionary 1305 (2d ed. 1972). And while Title IX generally prohibits discrimination on the basis of biological sex, Congress has taken pains to emphasize that “nothing” in its mandate “sh[ould] be construed” as forbidding separate-sex living facilities in school settings, signaling that sex separation doesn’t always amount to discrimination under the statute. §1686. Shortly after the law’s adoption, too, Congress directed the Department of Health, Education, and Welfare to publish implementing regulations addressing athletics. Pub. L. 93–380, §844, 88 Stat. 612 (1974). And the agency responded with regulations expressly permitting schools to “sponsor separate teams for members of each sex.” 45 CFR §86.41(b) (1975), as recodified, 34 CFR §106.41(b) (2025); see also Loper Bright Enterprises v. Raimondo , 603 U. S. 369, 430 (2024) (GORSUCH, J., concurring) (contemporaneously issued and longstanding regulations do not control but can supply evidence of statutory meaning). Putting all these pieces together, and consistent with the Court’s conclusion today, Title IX does not clearly and unambiguously alert funding recipients that they are prohibited from sponsoring sports teams restricted to biological women or girls.¶verify

Second, Bostock v. Clayton County , 590 U. S. 644 (2020), supports, not undermines, the Court’s conclusion. There, we faced the question whether firing an employee for being homosexual or transgender amounted to “discriminat[ion] . . . because of . . . sex” in violation of Title VII. Id. , at 650651, 655 (internal quotation marks omitted). In answering that question, we took two things as given. One, everyone agreed that firing an employee counts as “discrimination” in violation of Title VII if done because of sex. See id ., at 681. Two, we read the word “sex” in Title VII to refer to biological sex. Id ., at 655. Given all that, the only issue we had to resolve was whether discriminating against individuals for being homosexual or transgender qualifies as discrimination “because of ” their biological sex. We held that it does. The statutory phrase “because of ” does not require biological sex to be the only cause animating discrimination. Instead, that phrase merely requires biological sex to be one such cause. Id ., at 656–659. And, as we detailed in our opinion, discriminating against a person for being homosexual or transgender necessarily entails discriminating against that person at least in part because of his biological sex. Id ., at 660.*¶verify

All of that is consistent with the course the Court takes today. Title IX prohibits various types of discrimination “on the basis of sex.” §1681(a). The Court understands the term “sex” in Title IX to mean biological sex, just as we understood that term in Title VII in Bostock . See ante, at 10. Likewise, the Court does not question that “on the basis of ” is perhaps but a synonym for “because of ” and thus does not require biological sex to be the sole cause of¶verify

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*Contra JUSTICE JACKSON, post , at 3, this Court’s sex-stereotyping cases proceed similarly. So, for example, when an employer fires a female employee for failing to conform to a sex stereotype, the employer does so both because of the employee’s biological sex and because she is perceived to act in ways that defy some stereotype the employer holds about her biological sex. And given that the employee’s biological sex constitutes one reason for her firing, the employer’s conduct implicates Title VII. See Bostock , 590 U. S., at 659–660, 662; see also Price Waterhouse v. Hopkins , 490 U. S. 228, 250–251 (1989) (plurality opinion).¶verify

discrimination, just as we held in Bostock . See Franklin v. Gwinnett County Public Schools , 503 U. S. 60, 75 (1992).¶verify

The difference between this case and Bostock is that we face here a question that wasn’t present there. In Bostock , again, no one doubted that firing someone because of his biological sex qualified as “discrimination” under Title VII. See 590 U. S., at 681. Here, though, we face the question whether it qualifies as discrimination under Title IX for a federal funding recipient to sponsor sports teams restricted to biological women or girls alone. And for the reasons just laid out above and explored in depth by the Court, it does not. Title IX anticipates and approves single-sex living accommodations and sports teams in school settings; it does not treat them as unlawful discrimination. See supra , at 2; ante, at 8–12.¶verify

Put simply, it is a mistake to assume that, just because firing someone in part because of his biological sex amounts to unlawful discrimination in violation of Title VII, sponsoring a single-sex sports team limited to biological women or girls must also amount to unlawful discrimination in violation of Title IX. It’s a point Bostock took care to underscore. As we put it, while “[f]iring employees because of a statutorily protected trait surely counts” as unlawful discrimination under Title VII, the question “[w]hether other policies and practices might or might not qualify as unlawful discrimination” under Title VII itself or other provisions of law cannot be simply assumed but must be assessed with reference to the policies in question and according to the relevant law’s terms. 590 U. S., at 681; see also ibid. (stressing that policies concerning “sex-segregated bathrooms, locker rooms, and dress codes”—and, one might add, school-sponsored sports teams—were not before us).¶verify

I appreciate that questions surrounding the participation of transgender athletes in women’s and girls’ sports are subjects of intense debate nationwide. The questions surrounding Bostock were too. But as there, our charge here is not to resolve those debates, only to apply faithfully directives found in a federal statute. And, as in Bostock , I believe the Court does that job today, reaching the result the law demands.¶verify