CHARLESTON, W.Va.–Let’s pick up where we left off last week.

The Supreme Court is considering a challenge–under the Fourteenth Amendment’s Equal Protection Clause–to Idaho’s Fairness in Women’s Sports Act. The law requires that public schools and higher-education institutions designate each sponsored sport as

�–� for males, men, or boys,

�–� for females, women, or girls, or

�–� as co-ed or mixed.

Such laws are about sex, not gender.

After all, a person’s sex goes to whether the person is male or female. Males are he. Females are she.

By contrast, gender is a construct of language. Masculine nouns are he, feminine nouns are she, and neuter nouns are it.

* * *

Also before the high court is a challenge to West Virginia’s Save Women’s Sports Act, which the Richmond-based federal-appellate court invalidated. The parties have briefed the issues, and the court has heard oral arguments. As with the Idaho challenge, a decision in the West Virginia challenge is expected by June.

The challenged West Virginia law has distinctions from Idaho’s, yet those distinctions shouldn’t lead to different results.

According to West Virginia’s merits brief, the Save Women’s Sports Act “says male students can compete on male and co-ed teams but may not compete on girls’ teams in school sports involving competitive skill or contact. The (a)ct defines ‘male’ and ‘female’ by … reproductive biology and genetics at birth.”

One difference between this challenge and the Idaho challenge is that this challenge arises not only as a constitutional challenge under the Fourteenth Amendment’s Equal Protection Clause but also under Title IX of the Civil Rights Act of 1964.

West Virginia recalls that the appellate court “read Title IX to say that West Virginia must allow (the plaintiff)–a male … who identifies as female–to compete in girls’ track and field. Playing sports on a boys’ or co-ed team was dismissed as no option. …

“In short, the (appellate court’s) approach erases the line between men’s and women’s athletics. Sex affects athletic performance … . If the (appellate court) were right, then Title IX’s role in preserving girls’ sports opportunities would end.

“Yet nothing in Title IX invalidates the (a)ct. Title IX’s text forbids sex discrimination–not sex distinctions. Males identifying as female are not similarly situated to females in athletic competition. The (a)ct thus advances, rather than offends, Title IX’s requirement of equal opportunity for the two sexes. In concluding otherwise, the (appellate court) undermined protections for female athletes and turned Title IX upside down.

“West Virginia’s law also satisfies the Equal Protection Clause. The Constitution does not require (s)tates to dispense with objective, biological sex distinctions. Nor does it require (s)tates to ignore inherent differences between men and women.”

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The challenger disagrees: “Excluding (the challenger) from girls’ sports teams … is differential treatment of a ‘person’ ‘on the basis of sex’ under Title IX. …

“Title IX’s regulations do not authorize (the challenger)’s complete exclusion from the entire athletic program. In the athletics context, Congress authorized some differential treatment on the basis of sex in the form of ‘reasonable provisions considering the nature of particular sports.’ But athletics are still educational programs, and construing the regulations to implicitly authorize the wholesale exclusion of (pupils such as the challenger), even in ‘no cut’ or intramural teams and even when there is no connection to fairness or safety, would bring the regulations into conflict with Title IX itself.”

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After last week’s column’s, one reader asked where women’s rights advocates are on this subject? Why are so many of them quiet?

For a possible answer, let’s pick up where we left off 95 weeks ago.

Could it be that they’re afraid to speak up?

Could it be that they’re afraid of those promoting “diversity” of many kinds yet not diversity of thought? Dare to disagree with them, and you’ll have a fight–of one form or another–on your hands. Your choices may be to fight or keep quiet.

Not everyone is willing to fight this fight.

That’s understandable.

Yet women’s and girls’ sports need–and are worth–defending.

So are women’s and girls’ locker rooms.

It’s a sign of how far off course some have gone that this even needs saying: Male athletes don’t belong in women’s or girls’ sports, or in women’s or girls’ locker rooms. Period.

To athletes with Y chromosomes saying they’re not male, the answer is that they have Y chromosomes. As you read here last week, that makes all the difference.

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For more on this issue in general, see the interview of Dr. Randy Elf at 0:11.00 to 0:15.00 of https://accesschautauquacountytv.org/episode/GVbIPKfKKmw.

COPYRIGHT © 2026 BY RANDY ELF