Congress wrote one word into law in 1972 and never stopped to define it.
Fifty years later, an agency decided the word meant something else.
This summer, all nine justices disagreed.
By Jeff Bayard | Does the Constitution Really Say? — Part 12
This is the twelfth part of Does the Constitution Really Say?, a Virginia Christian Alliance series on the Supreme Court cases where the original meaning of the Constitution was quietly swapped for something else. Earlier parts asked what happens when:
- A Developer Seizes Your House
- Your Coach Is Fired for Praying
- You Are Judged by Your Group
- Your True Words Are Called Dangerous
- Read All Eleven Earlier Parts
You won’t find this take anywhere else. Not because it’s a secret. But because almost no one still does the work of going back to the actual words. This series does.
This week we look at one small word in a law almost everyone agrees was a good law. Does the Constitution really say the government can redefine a word Congress wrote?
Ellie’s Last Race
Ellie is a junior. She swims the 200 free.
She has been swimming since she was seven. Practice before school. Practice again after. Her mother drives her. Her times have dropped every year, and this season she is close — close enough that her coach has started saying “regionals” out loud.
At the February meet she finishes fourth. Three swimmers touch the wall ahead of her. The one who wins the girls’ 200 free is a boy.
He is on the girls’ team. He swims in the girls’ meets. He is listed in the girls’ results. Two spots go on to regionals, first and second. Ellie’s season ends on the pool deck, watching.
Her parents ask the athletic director how this is allowed. He tells them the truth as he understands it. The school is following the rule it was given. He shows them where the rule came from — a league handbook, and before that a federal office, and before that a Supreme Court case about a man who was fired from a funeral home in Michigan.
Ellie’s father asks the obvious question. When did anyone vote on this?
Nobody did. There is no law to read. The word in the law is the same word it has been since 1972. What changed is what somebody decided that word would be taken to mean. And that decision traveled from an office, to a handbook, to a school, and finally to a sixteen-year-old girl standing on a starting block, wondering why the rules moved.
<p>One thing before we go on. That boy is sixteen. He did not enroll himself, sign his own eligibility form, or put himself on that roster — a parent did. Minors cannot do those things, which is why the law puts them in a parent’s hands. So this piece is not going to aim at a kid for a decision that was never legally his to make.</p>
<p>But notice what that means. Every adult in this story acted within their authority. The parents signed. The school followed the handbook. The league wrote the handbook. And not one of them was ever asked to answer to the voters of Virginia, because no Virginian ever voted on any of it. That is the question this series has asked eleven times: the law says one thing — so who changed it, and by what authority?</p>
So here is the question. Does the Constitution really say the government can redefine a word Congress wrote?
What the Words Meant
In 1972, Congress passed a law called Title IX. Here is the heart of it:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…
Congress passed it because women and girls were being shut out. Shut out of colleges. Shut out of scholarships. Shut out of medical school and law school. And shut out of sports.
It worked. Before 1972, a girl who wanted to play a school sport often had nowhere to play. Today it is a normal part of growing up. Doors that had been closed for a century opened, and they opened fast.
Hold onto that. This law was a good law, and it did the thing it was written to do.
Now notice something about the sentence. Title IX never defines the word “sex.” It didn’t need to. In 1972, nobody in that debate wondered what the word meant.
And notice why the definition matters so much. Title IX protects a category — women and girls — by name. A protection built for a category only works if the category holds still. If the category can be entered by anyone who says so, then the protection protects nothing in particular. That is not a religious claim or a political one. It is just what the sentence does.
Virginia has a place in this story, and an honorable one. In 1996, the Supreme Court heard a case about the Virginia Military Institute, which admitted only men. The Court ruled 7–1 that VMI had to open its doors to women. Justice Ruth Bader Ginsburg wrote the opinion.
Read that case today and something jumps out. The reasoning that opened VMI to women rested on sex being a real and lasting thing — real enough that shutting women out was a real injury. The ruling that won women a place assumed the very fixed meaning that is now in question.
What the Words Now Mean
Here is where a reader needs to know how the machinery actually works, because this is the part almost nobody is shown.
There are four different things that can tell your school what to do, and they are not equal:
- A law. Congress votes on it. The President signs it. You can read it. You can vote out the people who passed it.
- A regulation. A federal agency writes it. Nobody votes on it. It still carries the force of law.
- Guidance. An agency explains what it thinks a law means. Nobody votes on it, and it is not law at all — but schools follow it, because the agency controls their federal money.
- A private rulebook. A league or association writes its own rules. No government is involved.
Keep those four straight and the rest of this story tells itself.
In 2020, the Supreme Court decided a case called Bostock v. Clayton County. Justice Neil Gorsuch wrote it. The vote was 6–3. The Court held that firing a worker for being gay or transgender counts as discrimination because of sex.
Two things about that case matter here.
First, Bostock was about Title VII — the employment law. It was not about Title IX, the education law. Different law, different words around it, different setting.
Second, Gorsuch drew a boundary around his own opinion. He wrote that the other laws were not before the Court, and that the Court had not had the benefit of adversarial testing about the meaning of their terms. In plain English: we are not deciding anything beyond this case. He named bathrooms and locker rooms specifically as things the Court was not deciding.
The boundary got crossed anyway.
The reasoning from the employment case was carried over into education. It showed up in guidance. Then in 2024, the Department of Education wrote it into a full regulation — a rule with real teeth, covering every school that takes federal money.
Nobody voted on that. Congress did not reopen Title IX. The word in the statute never changed. An agency simply announced what the word would now be taken to mean, and schools across the country adjusted.
Then, in January 2025, a federal court threw that regulation out nationwide. The 2024 rule was gone. The older 2020 rule came back into force, and it is the rule the Department enforces today.
If that sounds familiar, it should. Part 11 told the same story with a different word. A power nobody voted for, built out of phone calls and guidance and pressure, doing work that only a law is supposed to do. Different subject. Same machine.
What Happened Next
On June 30, 2026, the Supreme Court answered the question directly. The case was West Virginia v. B.P.J., decided together with Little v. Hecox. Justice Brett Kavanaugh wrote the opinion.
The case reached the Court from the Fourth Circuit — the federal appeals court that covers Virginia. That court had ruled against West Virginia on the Title IX question. The Supreme Court reversed it.
The holding:
Consistent with Title IX and the Equal Protection Clause, we hold that the States may maintain women’s and girls’ sports for biological females. They may determine eligibility for women’s and girls’ sports based on biological sex.
Read that sentence carefully, because one word in it is doing enormous work.
May. Not must.
The Court did not order every state to do anything. It said states are allowed to set eligibility for girls’ sports by biological sex. The decision went back to the states — which means it went back to people who answer to voters.
The Court also dealt with Bostock directly. It said Title VII and Bostock are not relevant in the very different statutory and factual context of sports. And it pointed back to Gorsuch’s own words — that his opinion did not purport to address bathrooms, locker rooms, or anything else of the kind. The Court that wrote Bostock had said it wasn’t about this. Six years later, the Court confirmed it.
Now here is the part the headlines mostly skipped.
Coverage of this case led with the split, and there was one. On the constitutional question — whether these state laws violate the Equal Protection Clause — the Court divided. Justice Sonia Sotomayor dissented from that part, joined by Justices Elena Kagan and Ketanji Brown Jackson.
But that was the constitutional question. On the statutory question — what the word “sex” means in the law Congress wrote in 1972 — look at what the dissenting justices actually wrote.
Justice Sotomayor wrote that she agrees the Title IX claim fails.
Justice Jackson wrote that she agrees with her colleagues that the Title IX claim fails.
All nine justices reached the same answer about the word. Not one of them read Title IX to mean what the agency had said it meant.
That is remarkable, and almost nobody has heard it. A Court that disagrees about nearly everything did not disagree about this. The word Congress wrote in 1972 still means what it meant in 1972 — and every justice on the Supreme Court said so.
The Strongest Argument the Other Way
The other side of this deserves to be heard at full strength.
Bostock‘s logic is tight. If you fire a man because he identifies as a woman, you did take his sex into account. That reasoning is not a trick, and it is not stupid.
There is also a harder question underneath all of this, and the Court took it on directly rather than ducking it. Not every boy is faster or stronger than every girl. Some boys fall inside the normal range for girls, or below it. So why not decide case by case, athlete by athlete?
The Court’s answer is worth understanding, because it applies far beyond sports. A rule is judged by how it handles the general problem, not by how it lands on one person. Everyone already agrees schools may have separate boys’ and girls’ teams — that is itself a rule based on sex, applied to every student without measuring any of them. Even the people suing agreed that schools do not have to test each individual boy before keeping him off a girls’ team. Once you accept that, you have accepted a rule that sorts by category. The argument is over which category, not whether to have one.
Transgender students are real students. Some of them are treated badly, and schools need a rule they can actually follow. Telling a principal to figure it out alone means a fifteen-year-old becomes the test case in a fight nobody prepared him for.
And there is a serious argument for handling this case by case, close to home. Virginia’s current governor made it as a candidate. In a September 2025 interview, Abigail Spanberger described the system Virginia had used for about ten years: roughly forty students went through it, some approved and some denied, with schools, parents, principals, and coaches weighing the child’s age, the particular sport, competitiveness, and safety. She said she thought it was working, and that it is “the process that Virginia should continue to utilize.”
Take that seriously, because it is not a weak position. People who know the child and the sport may judge better than a rule written in advance by strangers.
That is a real argument. Here is the answer.
None of it decides who writes the rule. A good rule adopted the wrong way is still a rule nobody agreed to. And case-by-case discretion has a cost the argument doesn’t count: it means a girl’s season depends on which adults happen to be in the room that year. That is the opposite of a standard. Ellie cannot read it, plan around it, or appeal it — because there is nothing written down for her to read.
There is an honest way to settle this, and it was already underway before the Court ruled. In May 2026, Representative Jodey Arrington of Texas introduced the Title IX Clarification Act, joined by 22 cosponsors. It would write a definition of “sex” directly into Title IX. The House Education and Workforce Committee advanced it on July 21, 2026. It still needs a vote of the full House, and then the Senate.
Whether that bill passes is not the point here. The point is that the road exists. It is public. It is recorded. Members have to vote, and voters get to watch. That road was open the whole time.
When a power can be won in the open and somebody builds it quietly instead, the quiet way is not a shortcut. It is an admission.
Did God Really Say?
The oldest trick in Scripture was never a flat lie. In the garden, the serpent did not begin by calling God a liar. He asked a question about a word: “Has God indeed said…?”
He didn’t need Eve to believe something false. He needed a fixed word to come loose.
Scripture does not treat male and female as an arrangement people worked out. It treats it as a fact about how people were made. “So God created man in His own image; in the image of God He created him; male and female He created them” (Genesis 1:27, NKJV). It is stated the way you would state anything else about creation — as something that was done, not something that was decided.
That is what makes the question in this piece a very old one. Loosen a fixed word and everything built on top of it moves. Title IX was built on top of one.
What the Citizen Does
Start by knowing the words for yourself. Hillsdale College offers Constitution 101 free and online. Hillsdale takes no state or federal money — not even student aid — which keeps its teaching free of political pressure. Dozens of courses, no cost, go at your own pace. Start there.
Then look at Virginia, because Virginia is where this gets surprising.
Start with the good news. If Ellie swam in Virginia this season, that race would have been girls only. The rule here says a boy may not compete on a girls’ team.
Now find out where that rule lives. It is not in the law.
There is a section of the Code of Virginia that people often assume covers this — § 22.1-23.3. It doesn’t. That statute tells the Department of Education to write model policies about transgender students, covering things like records, privacy, and dress codes. And then it says this, in the text of the law itself: activities and events do not include athletics.
Athletics is carved out. On purpose, in the statute.
No other section of the Code governs athletic eligibility by sex. No Board of Education regulation does either. Two bills that would have taken up the question — one in 2025, one in 2026 — both failed.
The Supreme Court noted in its opinion that 27 states have passed laws on this in the past six years. Virginia is not one of them.
So who decides whether a boy swims in the girls’ 200 free in Virginia? The Virginia High School League. A private association of member schools. Not the Commonwealth. Not your delegate. Not anyone you elected.
The rule is real and it is written down. It sits in the League’s policy manual, and it says that males and students identifying as transgender females may not compete on a girls’ sports team — except cheerleading. That exception is in the text.
Now read the first line of that same rule, because it names its own authority. It does not cite Virginia law. It cites a presidential executive order.
It is also worth seeing how that rule sits on the page. The League’s transgender section is dated December 2014, and most of it still describes the old system — a multi-level appeals process with hearings, medical documentation, and a two-thirds vote. The 2025 change was added inside that section as a note. So a parent who reads it straight through walks past pages of appeals machinery before reaching the sentence that closes girls’ teams. Nothing is hidden. It is just layered, the way a document gets when it is patched instead of rewritten.
And the League has not touched it since the Supreme Court ruled. The decision that handed states this authority came down on June 30. The section still carries its old date.
That is worth sitting with. The protection a Virginia parent has today was not written by the General Assembly. It was written by a private league, in February 2025, days after a federal order came down — and the order is what the League points to as its reason.
We know state pressure alone would not have done it. In July 2023, Virginia’s own Department of Education issued model policies for school boards. They defined the word “sex” to mean biological sex, and they said that for any athletic program separated by sex, participation is determined by sex rather than gender identity. That is exactly the rule the League follows today.
The League did not change. It kept its earlier policy for another year and a half.
Why not? Because those model policies were guidance — the third rung on the ladder above. The document says so about itself. And there is a wrinkle that makes the point sharper: the statute that tells the Department to write model policies is the same statute that carves athletics out. So the Commonwealth issued athletics guidance on a subject its own law had removed from the list. It was a recommendation with nothing behind it, and the League treated it that way.
Then a federal order arrived carrying the threat of lost funding, and the rule changed inside of a week.
Virginia asked, and nothing happened. Washington attached money, and everything happened. Neither one was a law.
Which means two things, and Virginians should hear both.
The first is that this protection is on loan. What one executive order set in place, another can undo — and the League has already shown how fast it moves when Washington moves. Nothing about the current rule requires a single vote by anyone you elected.
The second is harder, and this series would be dishonest to skip it. Part 11 described a government leaning on private companies to get a result it could not get by passing a law. That was wrong. This is the same machine — federal pressure, a private body, funding as the lever — pointed at an outcome many readers are glad about. A method is not made right by the result it happens to produce this year. If it can protect a girls’ team today without a vote, it can open one tomorrow without a vote.
The answer to that is not to give up the protection. It is to put it somewhere a phone call cannot reach: in a statute, passed in the open, by people who have to face voters.
One more thing to know before you plan. On this question the Governor is close to a bystander. She cannot write a statute — that is the General Assembly’s job. And she has no authority over a private league. Virginia already ran that experiment in 2023 and the League did not move. Anyone waiting on the Governor’s office, in either direction, is watching the wrong door.
- Read the rule yourself. The League posts its handbook publicly. It is long, and it is amended by supplements during the school year — so the version you read in the fall may not be the version in force by winter.
- Ask your school board which rule your district follows and who wrote it. Ask at a meeting, out loud, where the answer goes in the minutes.
- Ask your delegate and your state senator whether they will take up what the General Assembly declined to take up twice. That is the only door that leads to a law.
And know the calendar before you plan. Neither chamber of the General Assembly is on the ballot this November. Both were elected in 2025 to four-year terms. So this is not an election-day fix. It is the slower work of asking people already in office to do their jobs between sessions — which is most of what citizenship actually is.
The Supreme Court did its part. It read the word Congress wrote and said it still means what it meant. Nine justices, no disagreement.
The pen is on the table in Richmond. Somebody is going to pick it up. The only question left is who — and whether the rest of us were paying attention when they did.
Next time in Does the Constitution Really Say?… Part 13 takes up marriage. Congress passed a law defining it. The Supreme Court struck that law down, and then found a right to marry that no one had located in the Constitution for two centuries. We will ask what the words meant, who changed them, and what a Court does when it decides a question the country was still deciding for itself.
