The Courts and the Culture War

Posted: April 5, 2023 / Written by: Elizabeth Wolstein /

West Virginia District Court Reverses Itself To Uphold Statute Excluding Biological Boys From Girls Sports Teams

A West Virginia district court has reversed itself to uphold a state statute prohibiting biological males from joining certain girls school sports teams.  In B.P.J. v. West Virginia State Board of Education, the court initially granted a preliminary injunction allowing the plaintiff, a biologically male transgender girl, to play on the girls track team pending resolution of the case.  See B.P.J. v. West Virginia State Bd. Of Educ., 550 F. Supp.3d 347 (S.D. W. Va. 2021).  In a January 2023 decision, however, the court dissolved the preliminary injunction and granted summary judgment for the State, holding that the statute did not violate either the Equal Protection Clause or Title IX.  See B.P.J. v. West Virginia State Board of Education, 2023 WL 111875 (S.D. W. Va. Jan. 5, 2023).  Not that the law has been allowed to take effect:  in late February 2023, on plaintiff’s appeal of the order granting summary judgment to the State, the Fourth Circuit, in a one-paragraph order, stayed the summary judgment order.  As the summary judgment order dissolved the district court’s own earlier preliminary injunction, the upshot of the Fourth Circuit’s order is that the original preliminary injunction remains in effect pending the plaintiff’s appeal of the summary judgment order.  

The West Virginia statute defines girls as a biological females and boys as biological males.  The statute requires all school sports teams to be either male, female, or co-ed, based on biological sex.  Teams that are designated female are not open to males “‘where selection for such teams is based upon competitive skill or the activity involved is a contact sport.’” 2023 WL 111875, at *2 (quoting W. Va. Code § 18-2-25d(c)(2)).  The legislature made findings that in the context of such sports, “biological males and biological females are not similarly situated;” “biological males would displace females to a substantial extent if permitted to compete on teams designated for biological females;” and that classification of teams based on “biological sex is necessary to promote equal athletic opportunities for the female sex.”  2023 WL 111875, at *2.

Plaintiff’s equal protection claim challenged “the state’s definitions of ‘girl’ and ‘woman’ as based on biological sex,” and sought a declaratory judgment that “a transgender girl is ‘female’” within the meaning of the statute.  Thus, the court had to decide whether the legislature’s definition of “’girl’” and “’woman’” as a biological female “is constitutionally permissible.”  Id. at *1. 

The answer was no at the preliminary injunction stage.  The plaintiff had shown that she had not undergone and will not undergo male puberty “so long as she remains on her prescribed puberty blocking drugs.”  550 F. Supp.3d at 355.  With that status quo, the court concluded that the plaintiff “will not have any inherent physical advantage” over her female teammates.  Id. at 355-56.  And having “lived as a girl for years” the plaintiff “is not most similarly situated with cisgender boys; she is similarly situated to other girls.”  Id. at 353-54.  Consequently, applying intermediate scrutiny, the court concluded that as applied to the plaintiff, the statute is “not substantially related to” the government’s objective of protecting girls’ equal athletic opportunities or their physical safety during athletics.  Id. at 356.

By the time of summary judgment, the court did an about face so complete that the reader would be forgiven for thinking the case had been reassigned in the interim.

On the parties’ summary judgment cross motions, the court ruled that the plaintiff is not similarly situated to girls for purposes of athletics because she is a biological male.  See 2023 WL 111875, at *8.  From this determination a straightforward equal protection analysis flowed.  The court reasoned that barring medical intervention, “biological males generally outperform females athletically,” and that the state is allowed to enact rules for sports based on sex, because “sex, and the physical characteristics that flow from it,” are substantially related to athletic performance and fairness in sports.”  Id. at *8.  Unlike its earlier opinion, the court did not mention the Supreme Court’s Bostock decision (holding that firing an employee for being transgender constitutes discrimination on the basis of sex under Title VII); did not say that the statute discriminated on the basis of transgender status; and did not refer to plaintiff as a “girl.”  The court also abandoned the as-applied framework essential to its earlier ruling, explaining instead that transgender status does not in itself require the medical transition plaintiff was undergoing.  Rather, some transgender girls “may choose to only transition socially, rather than medically,” and even as to those who do take medication, it was open to debate the degree to which hormone therapies “can reduce a transgender girl’s athletic advantage” over biological girls.  Id. at *8.  The court rejected plaintiff’s “repeated argument” that she was being excluded from sports, explaining that transgender girls were not excluded from school sports but could try out for boys teams.

What happened between the preliminary injunction and summary judgment decisions?  The court pointed to two of the plaintiff’s litigating positions.  First, the plaintiff conceded that “circulating testosterone in males creates a biological difference in athletic performance.”  2023 WL 111875, at *7.  In addition, in her responses to requests for admission the plaintiff argued that transgender girls are similarly situated to biological girls “the moment they verbalize their transgender status, regardless of their hormone levels.”  Id. at *8.  But these positions would only undermine the court’s earlier ruling if the court departed from its as-applied analysis.  There was no real dispute that “circulating testosterone” developed in puberty is what gives boys physical advantages in sports.  See 550 F. Supp.3d at 355.  This was not a factor in the earlier analysis because plaintiff was medically suppressing her testosterone with puberty blockers, leading the court to conclude that plaintiff would have no advantage over the biological girls on the girls track team.  On summary judgment, the court changed its mode of analysis to consider that a different plaintiff might not be on puberty blockers, because “the social medical, and physical transition of each transgender person is unique.”  2023 WL 111875, at *8.  When the plaintiff turned to arguing that a boy who says he is a girl, but takes no hormones, is similarly situated to a biological girl, the plaintiff, too, departed from the original as-applied framework.  Once the court was faced with comparing a transgender girl who had all the physical characteristics of a biological male with a biological female, it had little trouble concluding that the groups were not similarly situated for purposes of school athletics.

The question raised by the as applied challenge lingers, however:  if a boy successfully eliminates the biological processes that give him the ability to displace girls in competitive sports, is he similarly situated to biological girls for purposes of secondary school athletics?  Is there anything other than circulating testosterone that distinguishes boys from girls for purposes of school sports?  The courts may soon have to decide.