A Solution in Search of a Problem: Transgender Restriction Violates Constitution and Title IX

Sep 24, 2021

By Professor Paul Anderson, Director, Sports Law Program and National Sports Law Institute, Marquette University Law School

Since Idaho passed its Fairness in Women’s Sports Act in 2020, 33 states have introduced over 100 bills restricting transgender participation in sport.  In general, these bills force athletes to participate in sports that coincide with their birth gender or biological sex, and as a result, individuals who are transgender (i.e., born female, but medically transitioning to male) cannot compete in the sport according to their current sex.  These bills are based on fears that transgender athletes will dominate sports, even though there is little evidence that this has or will happen. 

West Virginia Transgender Bill

On Wednesday, April 28, 2021, West Virginia governor Jim Justice signed House Bill 3293 into law.  Effective in July, the “Save Women’s Sports Bill” begins by celebrating the differences between biological males and females, and then states that “[b]iological males would displace females to a substantial extent if permitted to compete on teams designated for biological females” and so “[c]lassification of teams according to biological sex is necessary to promote equal athletic opportunities for the female sex.”[1]  The statute mandates that any high school or college athletic team must be “expressly designated as one of the following based on biological sex: (A) Males, men, or boys; (B) Females, women, or girls; or (C) Coed or mixed.”[2]  Once a team is so designated “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”[3]

Barring Participation

Because of this new law, 11-year-old girl B.P.J.’s school told her that she would not be able to join the girls’ cross country or track teams, because B.P.J. was born as a boy.  B.P.J. knew from a young age that she was a girl.  By third grade she was living at home as a girl, and soon joined her elementary school’s all-girl cheerleading team without incident.  In fact, as we come to know more about gender and sex, children typically know at a very young age that their identity is not their biological sex and begin to transition.  Typically, their classmates accept them, and their schools are accommodating as happened with B.P.J. until the law was passed. 

In 2019 B.P.J. was diagnosed with gender dysphoria, and she began taking puberty-delaying treatment in June of 2020.  The treatment prevents endogenous puberty and any physiological changes caused by increased testosterone circulation, preventing her from developing any physiological advantage over other girl athletes. 

The Lawsuit

After being told by her school that she could not participate, B.P.J. sued claiming that the law deprived her of her 14th Amendment rights and violated Title IX.[4] 

Equal Protection Claim

The court begins its review with the Equal Protection Claim.  The state argued that it was treating B.P.J. equal to other biological males, but the court disagreed finding that she was most similarly situated with other girls as she has lived as a girl for years, changed her name, participated in girls cheerleading, and out of all of the girls at her school, she would be the only one prevented from participating in sports.  As the court noted the “inescapable conclusion” is that the law “discriminates on the basis of” her transgender status.[5]  The court then follows the Fourth Circuit in Grimm v. Gloucester County School Board,[6] a case wherein a transgender boy challenged a school policy banning him from using the bathroom associated with his gender identity.  Following Grimm, the court found that “discrimination against transgender people is inherently based on sex” and the state then had the burden to show that there was a reasonable fit between the statute and a substantial government objective. 

The state argued that the statute’s purpose was to provide equal opportunities for female athletes and to protect them from harm.  Pursuant to the state’s safety justification, the court noted that B.P.J. had already been on puberty delaying drugs and will not develop the physical advantages expected of young boys, and more important, the sports she wanted to participate in were not contact sports so her participation would not put other participants in danger.  Moreover, as to the second justification, the court noted that permitting her to participate would not take any opportunities away from other girls.  The court noted that transgender individuals make up 0.7% of teenagers, and the number who wish to participate in sports is even lower, therefore there was no evidence that allowing B.P.J. to play would take any opportunities away.  In the end, the court found that B.P.J. was likely to succeed in showing that the law violated her equal protection rights.

Title IX Claim

Moving to the B.P.J.’s Title IX claim, and again following Grimm,the court initially concluded that it was clear she was being excluded from participation on the teams on the basis of her sex.  Under the state law all other students, including transgender boys (biological females who transitioned to the male gender), are permitted to play on sports teams that identify with their gender.  Only a transgender girl like B.P.J. is barred from doing this, and as the court notes, “the law both stigmatizes and isolates B.P.J.”[7]  According to the court, this exclusion is discrimination under Title IX, and she would face irreparable harm as “she would be excluded because of who she is: a transgender girl.”[8]  Balancing the harms, the court ruled in favor of B.P.J. supporting her right to be treated the same as her female peers “because any harm to B.P.J.’s personal rights is a harm to the share of American rights that we hold collectively.”[9]

Impact Moving Forward

As more states pass bans on transgender participation in sport, similar lawsuits will likely come forward by those rare transgender individuals who are both interested in participating in sport, and willing to put themselves through the struggle of a legal battle.  The West Virginia law purports to support female participation in sport, when in actuality it only bans transgender girls from participating in the sport that matches their gender identity, transgender boys could participate with no restrictions.   There is little evidence of any large group of transgender individuals trying to participate in sport, either male or female, and the assumption that these individuals will take opportunities from others is suspect.  This sort of law passed to solve a problem that does not seem to exist seems particularly misguided as this court noted that there was “scant evidence that this law addresses any problem at all, let alone an important problem.”[10]

Courts have already found repeatedly that transgender individuals are protected under Title IX in cases dealing with their access to educational facilities and their locker and bathrooms.  As participation in sport necessarily involves the use of locker and bathrooms, perhaps finding no way to ban access to these facilities, these new laws are attempts to make these individuals ineligible to participate regardless.  Courts have also begun to follow the Supreme Court’s Bostock v. Clayton County[11] decision holding that discrimination against transgender individuals violates Title VII and applying this reasoning to Title IX decisions. This is also something courts have done since for years, beginning with the 1979 Supreme Court decision finding that private individuals have an implied cause of action to sue for violations of Title IX,[12] based on similar precedent under Title VII. 

Unfortunately, the only victim here is B.P.J., and other children like her.  Like so many plaintiffs like her, no one had complained about her participation up until this law was passed, she was not a problem that needed to be dealt with.  Hopefully state legislatures will focus on the real problems facing their citizens in the future.

[1] W. Va. Code, § 18-2-25d, clarifying participation for sports events to be based on biological sex of the athlete at birth (2021)

[2] Id. § 18-2-25d(c(1)).

[3] Id.  § 18-2-25d(c(2)).  Although not the focus of this litigation this “competitive skill and contact sport” language seems to come from Title IX’s contact sport exception found in 34 C.F.R. 106.41​.  That language was implemented as part of the Code’s language allowing for separate teams by gender and based on the assumption that if teams were not allowed to be separated based on gender boys would dominate as they have more competitive skill than girls. Whether that is the case in all sports in 2021 is debatable.

[4] B.P.J. v West Virginia State Board of Education, 2021 WL 3081883 (S.D. W.V. 2021)

[5] B.P.J.,2021 WL 3081883, *4.

[6] 972 F.3d 586 (4th Cir. 2020)

[7] B.P.J.,2021 WL 3081883, *7.

[8] Id.

[9] Id.

[10] Id. at *1.

[11] 140 S.Ct. 1731 (2020).

  • [12] Cannon v.  Univ.  of Chi., 441 U.S. 677 (1979).

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