The Constitutionality of Transgender Athlete Bans: Why the Real Battle Isn’t in the Supreme Court
- Amaris Keys
- 3 days ago
- 3 min read
On January 13, 2026, the Supreme Court heard oral arguments on whether Idaho and West Virginia can ban transgender athletes from women’s school sports teams. While the Court will address whether such bans discriminate based on sex in violation of Title IX and the Fourteenth Amendment, the Department of Health & Human Services (HHS) isn’t waiting for an answer. It is already enforcing Title IX as requiring such bans, threatening over $300 billion in federal grants to coerce compliance.
On the same day as the oral arguments, twelve states (New York, California, Illinois, Minnesota, Rhode Island, Oregon, Colorado, Delaware, Michigan, Nevada, Vermont, and Washington) filed suit challenging this enforcement. Their case confronts a constitutional issue broader than the one before the Supreme Court: whether any administration can deploy federal funding to compel compliance with executive policy that conflicts with state law.
The Title IX Certification Trap
Since October 1, 2025, HHS requires anyone receiving federal grants to certify they comply with Title IX, including the requirements of Executive Order 14168. By defining sex based on reproductive biology at birth, the order effectively mandates exclusion of transgender individuals from programs and facilities aligned with their gender identity.
But the policy’s reach extends far beyond transgender athletes’ rights. The Title IX certification requirement applies not just to Title IX-related programs but to over $300 billion in annual HHS grants spanning healthcare, child welfare, scientific research, and more. If funding is frozen, many will suffer the impacts.
States with trans-inclusive policies are placed in an impossible position. They must choose to either 1) certify and violate their state laws prohibiting discrimination based on gender identity; 2) refuse to certify and immediately lose billions in federal funding; or 3) falsely certify (by maintaining transgender-inclusive policies while claiming compliance) and face the threat of False Claims Act liability and criminal prosecution for making false statements to the federal government.
The False Claims Act Compounds the Financial Coercion
The False Claims Act, proclaimed by the DOJ as the primary weapon of its newly created Civil Rights Fraud Initiative, amplifies the financial peril facing institutions. The loss of frozen funds is exacerbated by the sums potentially payable in damages and penalties. Under the FCA, the federal government can extract damages of up to three times the value of every federal grant received. Additionally, the certification requirement applies retroactively to grants already received before the policy even took effect. When frozen funds, FCA liability, and the costs of litigation converge, institutional collapse becomes inevitable.
Worse still, the threat of bankruptcy becomes ever-present under the FCA’s qui tam provision, which allows private whistleblowers to sue on behalf of the government.[1] This provision entitles whistleblowers to receive up to 30% of the recovery, which could amount to millions in payouts. By financially incentivizing private citizens to provide continuous surveillance, the FCA allows the government to reap the benefits of enforcement without bearing its costs.
Enforcement Continues In Spite of Court Blocks
Three federal courts have already issued temporary blocks, finding the certification requirement likely violates separation of powers (by amending a statute via executive order without congressional authorization), violates the Tenth Amendment (by using existential funding threats to compel state cooperation), and bypasses rule-making requirements (by imposing rules without notice or opportunity for comment).
Despite these rulings, HHS continues enforcement against institutions not covered by those specific court orders.
The current reality demonstrates the effectiveness of this strategy. In July 2025, the University of Pennsylvania agreed to ban transgender athletes to restore $175 million in federal funding. Education Secretary Linda McMahon, speaking on the steps of the Supreme Court while oral arguments on transgender athlete bans were heard inside, declared that UPenn’s settlement “set the tone for all other educational institutions.”
Her remarks indicated the strategy’s enforcement power: when the financial stakes are high enough, institutions will choose compliance over litigation, regardless of the underlying legality.
The Constitutional Stakes
The twelve-state lawsuit therefore challenges not merely the policies affecting transgender athletes, but the entire enforcement structure that would permit executive orders to govern through financial coercion rather than legislation.
If successful, the lawsuit would establish essential limits on executive power, with consequences reaching far beyond sports into every domain where federal funding might be weaponized to implement policy without congressional authorization.
But if this enforcement mechanism survives constitutional challenge, future administrations of any political orientation will possess a structure for imposing sweeping policy changes across healthcare, education, research, and civil rights through executive order alone, rendering both congressional authority and state sovereignty effectively meaningless wherever institutions depend on federal funding.
Legal Research Associate, TRACE
[1] In September 2024, a Florida federal court ruled in U.S. ex rel. Zafirov v. Florida Medical Associates, LLC that the FCA’s qui tam provision is unconstitutional. This issue now appears headed to the Supreme Court.