By Libba Galloway, Stetson University
Starting with Idaho in early 2021, 18 states have adopted statutes prohibiting transgender females from participating in female sports. Many of these statutes have been challenged in state and federal courts, mostly on the grounds that they violate the 14th Amendment’s Equal Protection Clause (or similar state constitutional provisions) and/or Title IX. In some of these cases, courts have issued preliminary injunctions prohibiting enforcement of the statutes, and in other cases courts have wrestled with issues of standing. Earlier this month, a U.S. District Court issued a ruling on the merits of West Virginia’s law in B.P.J., et al. v. West Virginia State Board of Education, et al. – and it was not good news for those who advocate for participation by trans females in female sports.
Background
B.P.J. is a transgender girl in West Virginia who was barred from trying out for the girls’ cross country team at her school due to the passage of H.B. 3293 in 2021. That law considers biological sex to be an individual’s physical form as a male or female based solely on the individual’s reproductive biology and genetics at birth, and defines “girl” and “woman,” for the purpose of school sports, as biologically female. Under the law, biological males, including those who identify as transgender girls, may not participate on girls’ sports teams.
B.P.J. sued the West Virginia State Board of Education and others in the U.S. District Court for the Southern District of West Virginia. She alleged that enforcement of H.B. 3293 violated the 14th Amendment’s Equal Protection Clause and Title IX, and she requested a preliminary injunction to allow her to compete on the girls’ cross country team during the pendency of the case. Finding that she had a likelihood of success on the merits, the court granted the preliminary injunction.
The Decision
In a surprise to some observers, the court shifted course. On January 5, 2023, the court upheld H.B. 3293, by ruling that its enforcement against B.P.J. did not violate the 14th Amendment’s Equal Protection Clause or Title IX.
The first question before the court was whether the definition of “girl” and “woman” in the context of participation on sports team was constitutionally permissible. Because H.B. 3293 clearly separates student athletes on the basis of sex, the court applied the intermediate scrutiny test to determine whether the law violates the Equal Protection Clause. Under that test, a law placing people into different classes and treating them unequally will pass constitutional muster if the law serves an important governmental interest and the unequal treatment is substantially related to achievement of that interest.
Since it was undisputed that the state has an important interest in providing equal athletic opportunities for female students, the crux of the issue was whether the law’s definition of “biological sex” and the related definitions of “girl” and “woman” are substantially related to that important interest. In the end, the court accepted the defendants’ argument that in order to preserve this important governmental interest of providing athletic opportunities for females, it is necessary to exclude biological males from female teams because males as a group have significant athletic advantage over females. Therefore, B.P.J.’s claim that H.B. 3293 deprives her of her rights under the Equal Protection Clause was denied.
As for her Title IX claim, the court recognized that Title IX allows sports teams to be separated by sex, as long as overall athletic opportunities for each sex are equal. It also acknowledged that transgender girls in West Virginia are not entirely excluded from school sports because they are allowed to try out for boys’ teams, regardless of their gender identity. Noting that H.B. 3293 “largely mirrors” Title IX, the court denied B.P.J.’s claim that H.B. 3293 violates Title IX.
What Does This Mean for Trans Female Athletes?
It’s safe to say that while B.P.J. and other transgender girls may not be able to play girls’ sports in West Virginia, the door for trans female athletes to participate in female sports is not firmly shut. Given the interest that organizations like the American Civil Liberties Union have taken in this case, it is likely that the decision will be appealed to the Fourth Circuit Court of Appeals. Also, the fate of other state laws prohibiting trans females from participating in female sports is far from settled, not to mention the fate of state high school association policies which expressly permit trans girls to participate in girls’ sports. The sands may be shifting towards barring trans females from participating in female sports, but they could start shifting in the other direction. Unless and until the U.S. Supreme Court weighs in, inconsistency in laws and policies will reign, and questions will remain.
B.P.J., et al. v. West Virginia State Board of Education, et al., 2:21-cv-00316, Document 512 (S.D. W.Va. Jan. 5, 2023)
Libba Galloway is Assistant Professor of Practice, Chair of the Management Department, and Director of the Business Law Program at Stetson University’s School of Business
