On June 30, 2026, a 6–3 Supreme Court, in an opinion by Justice Kavanaugh, held in West Virginia v. B.P.J., No. 24–43, 609 U.S. ___ (2026) (consolidated with Little v. Hecox, No. 24–38), that Title IX and the Equal Protection Clause permit schools to exclude transgender women and girls from women’s sports teams. The ruling concerns athletics, but its implications extend far beyond the playing field.
Section 1557 of the Affordable Care Act (ACA), 42 U.S.C. § 18116, references Title IX, 20 U.S.C. § 1681(a), as the source of its prohibition on sex discrimination in health care. The majority’s statement that “sex” in Title IX “cannot plausibly be interpreted to refer to anything other than biological sex,” B.P.J., slip op. at 10, supplies new ammunition to those seeking to strip transgender patients of protection under Section 1557. But the holding’s reach is contested, and—as Justices Jackson and Sotomayor forcefully argued—it rests on athletics-specific statutory architecture that has no analog in health care. The fight over Section 1557 protections is not over.
Background on Sex Discrimination in Section 1557
Section 1557 prohibits discrimination “on the ground prohibited under” four civil-rights statutes, drawing its sex-discrimination protection directly from Title IX. See 42 U.S.C. § 18116(a). Because the statute incorporates Title IX by reference, how courts read “sex” in Title IX dictates how “sex” is read in the health-care context. The protection has had a turbulent regulatory history, with the Obama, Trump, and Biden administrations alternately expanding and contracting it across the 2016, 2020, and 2024 implementing regulations.
The Biden-era 2024 final rule, Nondiscrimination in Health Programs and Activities, 89 Fed. Reg. 37,522 (May 6, 2024) (codified at 45 C.F.R. pt. 92), issued by the HHS Office for Civil Rights (OCR), construed “sex” to include sexual orientation, gender identity, sex characteristics, sex stereotypes, and pregnancy. The rule’s inclusion of gender identity drew from Bostock v. Clayton County, 590 U.S. 644 (2020), which held that firing an employee for being transgender is sex discrimination under Title VII. That interpretation was promptly challenged, and the gender-identity provisions were stayed and then vacated. In Tennessee v. Kennedy, No. 1:24-cv-161, 2025 WL 2982069 (S.D. Miss. Oct. 22, 2025), a federal court held that HHS exceeded its statutory authority when it interpreted Title IX, as incorporated into Section 1557, to bar gender-identity discrimination, relying on United States v. Skrmetti, 605 U.S. 495 (2025), to distinguish Bostock on the theory that a denial of gender-affirming care turns on a medical diagnosis rather than sex. Against this backdrop, B.P.J. arrived as the first Supreme Court pronouncement on the meaning of “sex” in Title IX itself.
The Court’s Holdings and Key Reasoning in B.P.J.
Title IX permits sex-separated sports defined by birth sex. The majority held that Title IX, the 1974 Javits Amendment, § 844, 88 Stat. 612 (1974), and the 1975 implementing regulations, 34 C.F.R. § 106.41(b), (c), allow schools to maintain separate teams for “members of each sex,” and that West Virginia permissibly limited girls’ teams to females based on birth sex under its Save Women’s Sports Act, W. Va. Code Ann. § 18–2–25d. B.P.J., slip op. at 8–14. The Court grounded this conclusion in the athletics-specific regulatory structure and in inherent physical differences between the sexes, citing safety and competitive fairness. See id. at 11–12; see also United States v. Virginia, 518 U.S. 515, 533 (1996) (physical differences “are enduring”). It separately held that the laws survive equal-protection review because the sex-based classification is substantially related to those important interests. B.P.J., slip op. at 14–17.
The “biological sex” holding and its contested portability to health care. The Court held that “sex” in Title IX “cannot plausibly be interpreted to refer to anything other than biological sex.” B.P.J., slip op. at 10 (citing Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion)). Defendants in Section 1557 litigation will cite this to argue that the incorporated term “sex” excludes gender identity in health care, as the Tennessee v. Kennedy court concluded at the regulatory level. See 2025 WL 2982069. The critical question going forward is whether this holding—developed entirely within the athletics-specific architecture of the Javits Amendment and 34 C.F.R. § 106.41—should be transplanted wholesale into Section 1557, where no comparable sex-separation authorization exists.
The athletics-specific foundations of the holding. Even accepting the holding on its own terms, the Court repeatedly anchored its reasoning to the unique statutory and regulatory structure of athletics. Critically, the majority expressly disclaimed any broader reach—even within sports. In footnote 1, the Court stated that “[n]othing in this opinion is intended to decide” whether schools must allow transgender athletes to compete, only that they may exclude them. B.P.J., slip op. at 3 n.1. The holding thus answers one question (permissibility of exclusion) while explicitly reserving another (compelled inclusion)—a distinction that matters if future plaintiffs argue that Title IX or the Constitution requires schools to permit participation.
The majority also held that Title VII and Bostock “are not relevant in this very different statutory and factual context.” Id. at 13–14. But the Court’s reasoning makes clear why: “Title VII concerns employment, whereas Title IX as relevant here focuses on sports,” and “Title IX authorizes separate men’s and women’s sports teams.” Id. at 13 (emphasis added). Because Title IX permits sex separation in athletics, the Court reasoned, Bostock’s but-for framework does not control. That logic concedes the inverse: in contexts where no comparable sex-separation authorization exists—such as health care under Section 1557—Bostock may remain the governing framework. The Javits Amendment and implementing regulations that underpin the Court’s analysis have no analog in Section 1557 or health-care regulation. See id. at 10–12.
These distinctions matter: courts asked to extend B.P.J. to health care must grapple with whether an interpretation tethered to athletics-specific text can fairly govern a statute that contains no such text. The stakes could not be higher: health-care discrimination can be life or death. Nearly half of transgender individuals who saw a health-care provider reported at least one negative experience because they were transgender—including being refused care, being misgendered, or being subjected to harsh or abusive language. Nat’l Ctr. for Transgender Equal., U.S. Transgender Survey: Health (2024). These experiences drive avoidance: 28 percent of transgender individuals postponed or did not seek necessary medical care for fear of discrimination. Lindsay Mahowald & Sharita Gruberg, Fact Sheet: Protecting and Advancing Health Care for Transgender Adult Communities, Ctr. for Am. Progress (Aug. 18, 2021). Section 1557 was enacted precisely to address this kind of harm. Courts should not lightly import a sports-specific holding to strip protection from patients whose lives may depend on it.
Justice Jackson’s critique of the holding’s unnecessary breadth. Justice Jackson, joining Justice Sotomayor in full and writing separately on the Title IX claim, sharply criticized the majority for holding that “sex” in Title IX means only “biological sex” when the case could have been resolved on B.P.J.’s concession alone. Because B.P.J. did not contest that “sex” means “biological sex” for purposes of the case, and because the Javits Amendment permits sex separation in athletics, the Court “did not need to” and “should not have” reached the broader question. B.P.J., slip op. at 1–2 (Jackson, J., concurring in the judgment in part and dissenting in part). Justice Jackson warned that the majority was “wrong” to hold otherwise, because Bostock’s reasoning “plainly applies to Title IX” and a law forcing a transgender girl “to play—as a boy though she is a girl” “might well run afoul of Title IX properly construed.” Id. at 2–3. For litigants challenging the portability of the majority’s holding to health care, Justice Jackson’s opinion provides a doctrinal pathway: she identifies the holding as unnecessarily broad and preserves the argument that Bostock’s but-for reasoning remains the proper framework outside athletics.
Justice Sotomayor’s warning against extension. Justice Sotomayor, joined by Justices Kagan and Jackson, likewise rejected the majority’s approach and issued a warning against extending its holding beyond athletics. She stressed that Bostock applies to Title IX and that “there are plenty of contexts outside of athletics in which Title IX applies and does not allow sex distinctions like this one to be drawn”—including mandatory sex-segregated classes, harassment, and discrimination in admission and expulsion. B.P.J., slip op. at 32–33 (Sotomayor, J., concurring in the judgment in part and dissenting in part) (citing 34 C.F.R. §§ 106.8, 106.21, 106.34(b), 106.44, 106.45). Justice Gorsuch’s concurrence reinforces this point: he confirmed that “on the basis of” is “perhaps but a synonym for ‘because of’” and that Bostock “supports, not undermines,” a but-for sex-causation analysis. Id. at 3–4 (Gorsuch, J., concurring). Taken together, these opinions signal that at least three Justices—and arguably four—view the majority’s holding as context-specific and would resist its extension to health care or other non-athletics settings.
Practical Implications
For transgender and gender-nonconforming patients, the framework of Section 1557 protection has not collapsed, but it is contested. The athletics-specific holding does not itself decide any health-care claim, and courts have found that categorical exclusions of gender-affirming care may violate Section 1557 through Bostock’s but-for logic. The realistic risk is that defendants will invoke the B.P.J. majority’s “biological sex” holding to resist such claims—but litigants can and should argue that a holding rooted in athletics-specific statutory architecture should not govern health-care contexts where no comparable authorization for sex separation exists.
For providers and hospitals, the path forward is clear: continue providing medically appropriate care to all patients, including transgender patients, and continue honoring patients’ gender identities. B.P.J. addressed athletics—it did not disturb the legal, ethical, and professional obligations that support inclusive care. Maintaining nondiscrimination policies and providing medically indicated treatment remain not only lawful but often required by state nondiscrimination statutes, Title VII (for employee benefits), accreditation standards, and contractual commitments. Using patients’ correct names and pronouns is a core component of culturally competent care and, in some jurisdictions and care settings, may be required under nondiscrimination principles. The athletics-specific holding should be understood for what it is: a ruling about sports, not a license to discriminate in clinical settings.
Separately, providers should be aware of pending federal regulatory and enforcement activity—and the injunctions that currently constrain it. A proposed CMS rule, 90 Fed. Reg. 59,441 (proposed Dec. 19, 2025), would prohibit federal Medicaid and CHIP funding for gender-affirming care for minors; a companion rule, 90 Fed. Reg. 59,531 (proposed Dec. 19, 2025), would amend the Medicare and Medicaid Conditions of Participation to bar hospitals from providing such care regardless of payer. If finalized, the rules could take effect as early as October 1, 2026. In the interim, two preliminary injunctions limit federal enforcement. A preliminary injunction in Washington v. Trump, 768 F. Supp. 3d 1239 (W.D. Wash. 2025), enjoins enforcement within four plaintiff states (Colorado, Minnesota, Oregon, and Washington) of: (1) Section 4 of Executive Order 14,187, which directs agencies to withhold funding from institutions providing gender-affirming care to minors; (2) Section 3(e) of Executive Order 14,168, which requires agencies to remove statements, policies, and communications that “promote or otherwise inculcate gender ideology”; and (3) Section 3(g) of Executive Order 14,168, which prohibits federal funds from being “used to promote gender ideology.” A separate nationwide preliminary injunction in PFLAG, Inc. v. Trump, 769 F. Supp. 3d 405 (D. Md. 2025), bars the federal government from conditioning or withdrawing funding based on provision of gender-affirming care to minors. Both injunctions remain in effect pending appellate review. Providers should monitor these proceedings closely; the injunctions provide current protection, but the regulatory and litigation landscape is fluid.
