The Courts and the Culture War

Posted: May 17, 2024 / Written by: Elizabeth Wolstein /

Fourth Circuit Undoes District Court’s Judgment Upholding West Virginia Statute Barring Biological Males From Girls’ Sports Teams

Last year we wrote about BPJ v. West Virginia Bd. of Educ., in which the district court reversed its own preliminary injunction to uphold a West Virginia statute that barred transgender girls (biological males) from participating in certain girls’ sports.  The district court determined that the statute did not violate the Equal Protection Clause or Title IX and granted summary judgment to the state. The Fourth Circuit then stayed the district court's judgment so that pending the litigation the plaintiff, a 13-year old transgender girl, could join her school’s girls’ cross country and track teams.  In an April 16, 2024 decision, the Fourth Circuit vacated the judgment in part and reversed in part.  The Court rejected the district court’s analysis on both the constitutional and statutory claims, directed that BPJ be granted summary judgment on her Title IX claim, and remanded for further development of the record on BPJ’s Equal Protection claim.  The decision is here, and available on Westlaw at BPJ v. West Virginia State Bd. of Educ., 98 F.4th 542 (4th Cir. 2024).

The West Virginia statute (or the “Act”) requires public high school and college sports teams to be designated as male, female, or co-ed.  The designations must be based on biological sex, as determined “‘solely on the individual’s reproductive biology and genetics and birth.’”  Id. at 551 (quoting Act).  The statute also prohibits males from joining female teams where “‘selection for such teams is based upon competitive skill or the activity involved is a contact sport.’”  Id.  BPJ is a biological male in eighth grade who “has publicly identified as a girl since third grade.” Id.  She takes puberty blockers and cross-sex hormones and has not gone through male puberty. Id. at 561.  As a result of the district court’s preliminary injunction and the Circuit’s injunction pending appeal, BPJ participated on the girls’ cross country and track teams during the lawsuit.  The dissenting judge noted that BPJ consistently placed in the top 15 at events and earned a spot at the conference championships in shot put and discus. As a result, BPJ displaced over 100 biological girls from competition and two biological girls from the conference championships.  See id. at 566.

Transgender Girls And Biological Girls Are Similarly Situated; Therefore The Act’s Classification Based On Gender Identity Triggers Intermediate Scrutiny

The court explained that intermediate scrutiny applied due to “the Act’s differing treatment of cisgender girls and transgender girls.”  Id. at 555. Differential treatment only requires scrutiny, however, when two groups are similarly situated in all relevant respects.  The court neither acknowledged the similarly situated requirement nor explained how transgender girls and biological girls are similarly situated for purposes of contact sports or sports based on competitive skill. Intermediate scrutiny was also appropriate because the “undisputed purpose” and “only effect” of the definition of sex as based on biology and genetics was to exclude transgender girls from girls’ teams.  According to the Court, this created a “facial classification based on gender identity,” id. at 556, triggering intermediate scrutiny under Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020) (high school’s maintenance of separate restrooms based on biological sex and single stall co-ed restroom violated Equal Protection and Title IX). The Act also triggered intermediate scrutiny because it treats “people whose sex assigned at birth” is female differently from “people whose sex assigned at birth” is male: the former may play on any team but the latter may only play on male or co-ed teams.  Id. at 55.

Before moving to the next step—whether the classifications are substantially related to an important government interest—the court explained that its “analytical frame” would be to consider BPJ’s claim an “as applied” challenge, one that seeks an injunction preventing enforcement of the statute only against her. As a result, to prevail the state would have to show that “its refusal to make an exception for the plaintiff’s individual circumstances itself satisfies the relevant level of constitutional scrutiny.” Id. at 558-59. The court rejected the state’s argument that this standard, in substance, raised the level of scrutiny to strict because in effect it allows any person as to whom application of the law “would not advance the State’s interests to obtain a judicially ordered exception.”  Id. at 558.  That would seem to be a concern for the next case rather than this one, given that BPJ had in fact displaced dozens of girls from track and field events.

State’s Legitimate Interest In Maintaining Sex Segregated Sports Teams Does Not Extend To Excluding BPJ From Girls’ Teams

The state offered two justifications for excluding biological boys from girls’ teams: “participant safety and competitive fairness.”  Id. at 559.  BPJ did not dispute that both “are important government interests” but argued that excluding her is not substantially related to either goal.  The state acknowledged that participant safety was not implicated since track and field is a non-contact sport.  Id.  Thus, the court’s focus was on “the concededly important government interest in competitive fairness.” Id.  The court framed the question as whether “there is a substantial relationship between the exclusion of all transgender girls from all girls’ teams and providing equal opportunities for women,” seemingly jettisoning its “as applied” approach of considering whether the Act could constitutionally be applied to BPJ.  

Answering this question required consideration of “sex-based differences in athletic performance” and whether “people whose sex is assigned as male at birth enjoy a meaningful competitive athletic advantage over cisgender girls.”  Id. at 561.  Both sides offered expert evidence on the issue, and the district court never resolved the parties’ competing Daubert motions.  The Court ruled that disputed issues of fact precluded summary judgment for both sides, vacated the district court’s judgment in the state’s favor and remanded for further litigation of the Equal Protection claim.  See id. at 562, 565.

Statute Violates Title IX Because It Discriminates Based On Gender Identity

For similar reasons, the court concluded that applying the West Virginia statute to BPJ would violate Title IX, because it would operate to exclude her from or discriminate against her in school sports “on the basis of sex,” id. at 562-63. Grimm had already held that, for purposes of Title IX, discrimination based on sex includes “discrimination based on gender identity.” Id. at 563. As it did for purposes of Equal Protection, the court considered transgender girls to be similarly situated to biological girls, and faulted the Act for treating transgender girls “on a categorical basis, regardless of whether any given girl possesses any inherent athletic advantages based on being transgender.”  Id. at 563. While acknowledging that Title IX allows schools to operate sex-separated teams, that was not dispositive since BPJ was not challenging the legality of separate boys and girls’ teams, only whether the Act could limit her to boys and coed teams.  Id. at 564. Thus, the government is not “forbidden from creating separate sports teams for boys and girls” and is not required under Title IX to allow “every transgender girl” to play on girls’ teams regardless of their experience of puberty or testosterone levels.  Id. at 565.  The state just could not prohibit this particular biological boy from playing on the girls’ track team.  The court therefore ordered that summary judgment be granted to BPJ on her Title IX claim.

Dissent Rejects Majority’s Failure To Grapple With Similarly Situated Requirement And Determination That Act Facially Discriminates Against Transgender Students

The dissenting judge criticized the majority’s “fail[ure] to grapple with” the similarly situated element of BPJ’s Equal Protection claim.  Id. at 567.  Because “biology provides a competitive advantage in sports, biology is a significantly relevant characteristic for the similarly situated analysis.  Yet for reasons unknown, the majority concludes that BPJ—a biological boy—is nonetheless similarly situated to biological girls.”  Id. at 568.  It is “plainly incorrect” for the majority to consider gender identity “the only relevant factor” in determining that BPJ was similarly situated to biological girls. Rather, BPJ’s identification as a girl was “irrelevant” because gender identity, “simply put, has nothing to do with sports.” Id. at 568.  Rather, it is biology that affects “how fast someone can run or how far they can throw a ball.” Id. at 569.  BPJ illustrated the dissent’s point, having dominated her track and field events and “repeatedly [taken] opportunities away from biological girls.”  Id. at 571. 

The dissent also rejected the majority’s conclusion that the Act facially discriminates based on transgender status, given that the statute creates no classification treating transgender students differently from non-transgender students.  Rather, the statute “simply places athletes on sports teams based on their biological sex.”  Id. at 569.  Thus, while it could be that the Act “has the effect of treating transgender students differently than non-transgender students,” BPJ did not bring a disparate impact claim but a facial challenge. Id. at 570. The dissent chided the majority for rectifying that failure and finding a “transgender classification on the face of the Act where none exists.”  Id. at 570.

The majority’s determination that “transgender girls are similarly situated to biological girls regardless of any potential advantage” had even more far reaching implications under Title IX, according to the dissent.  Id. at 572. That is because, in contrast to Equal Protection analysis, the state’s justification does not figure in determining whether Title IX is violated.  Rather, “[i]f a court finds discrimination under Title IX, the inquiry ends.”  Id.  Whether the state has “an exceedingly persuasive justification” is irrelevant.  Id.  Once transgender girls are deemed similarly situated to biological girls, they cannot be excluded from girls’ teams even if they have gone through puberty and even if they have significant physiological advantages over biological girls. See id. The majority has thus “use[d] Title IX to deny the very benefits it was enacted to protect.”  Id. at 573.

In theory, in the Fourth Circuit, statutes seeking to preserve girls’ sports will now be subject to a case by case Equal Protection analysis to determine whether the exclusion of any particular biological boy would advance the state’s interest in physical safety and competitive fairness.  However, it is unclear Equal Protection analysis will have any remaining relevance in light of the Biden Administration’s new Title IX rules, which protect explicitly against discrimination based on gender identity.  Statutes like West Virginia’s that seek to preserve sex-separated sports based on biological sex will presumably be deemed to run afoul of the new prohibition on gender identity discrimination. Multiple court challenges to the new rules (see here, here, and here) are pending.