RICHMOND, Va. (CN) — A divided Fourth Circuit panel sided with a transgender student-athlete Tuesday, finding West Virginia’s ban constitutes gender identity discrimination.
“The defendants also insist the act does not discriminate based on gender identity because it treats all biological males — that is, cisgender boys and transgender girls — the same,” U.S. Circuit Judge Toby Heytens, a President Joe Biden appointee, wrote for the majority. “But that is just another way of saying the act treats transgender girls differently from cisgender girls, which is — literally — the definition of gender identity discrimination.”
West Virginia enacted a law in 2021, originally introduced as the Save Women’s Sports Act, establishing that athletic teams or sports designated for females, women or girls shall not be open to students of the male sex, defined as an individual whose biological sex determined at birth is male.
Plaintiff B.P.J., born a biological male, had her name and sex legally changed, and her elementary and middle school created gender support plans to ensure she was fully recognized and supported as a girl. The 8th grader, who runs on her school’s girl’s cross-country team, sued the West Virginia State Board of Education, its then-superintendent, the Harrison County Board of Education and its superintendent, claiming enforcement of the act against her violated the Equal Protection Clause and Title IX.
On the equal protection claim, a lower court held that West Virginia’s definition of a girl being based on biological sex was substantially related to the critical government interest of providing equal athletic opportunities for females. Because B.P.J. was still permitted to try out for boys’ teams, the federal court concluded her Title IX challenge also failed.
The state primarily based its justification for excluding transgender girls from girls' sports teams on participant safety and competitive fairness.
“Women and young girls deserve to compete on a level playing field. The court’s decision undermines equal opportunities and contradicts both biological reality and common sense,” Alliance Defending Freedom attorney Rachel Rouleau said in a statement. “Title IX was designed to provide women with fair competition, and West Virginia’s women’s sports law does the same.”
The majority found B.P.J. presented evidence that as a transgender girl who has never gone through endogenous puberty and, therefore has never experienced any of the physiological changes consistent with puberty typical of cisgender boys, she possesses no inherent, biologically based competitive advantages over cisgender girls when participating in sports.
“The act requires treating students differently even when they are similarly situated,” Heytens wrote. “And it does so on a categorical basis, regardless of whether any given girl possesses any inherent athletic advantages based on being transgender.”
U.S. Circuit Court Judge Steven Agee, a George W. Bush appointee, wrote in his dissent that the majority failed to show how Jackson doesn’t benefit from being born a biological male.
“Gender identity, simply put, has nothing to do with sports,” Agee wrote. “It does not change a person’s biology or physical characteristics. It does not affect how fast someone can run or how far they can throw a ball. Biology does.”
The state argued the act didn’t violate Title IX because B.P.J. still had the choice to either not participate in sports or to participate with boys.
“Offering B.P.J. a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all,” Heytens wrote. “The defendants cannot expect that B.P.J. will countermand her social transition, her medical treatment and all the work she has done with her schools, teachers and coaches for nearly half her life by introducing herself to teammates, coaches, and even opponents as a boy.”
According to Rouleau, the majority’s opinion will result in a loss of opportunities for biological girls.
“Across the country, women and girls are unjustly losing medals, podium spots, public recognition and the opportunity to compete when males take their places,” Rouleau wrote. “While everyone knows that men competing against women creates huge disadvantages and safety concerns, the Fourth Circuit fell prey to activists who are pushing an ideology over what is just for women and girls.”
Plenty of eyes were on the case as over 50 organizations, including the American Academy of Pediatrics and the National Women’s Soccer League Players Association, joined the federal government and 17 states, including Maine, Illinois and D.C., by submitting briefs in support of B.P.J.
“The statute prohibits transgender girls from participating even in sports that involve little to no physical contact and applies to transgender girls who have not gone through endogenous puberty and thus do not fit the state’s overbroad generalizations regarding the relative size, speed, and athletic abilities of boys versus girls,” the United States wrote in its brief.
Attorneys representing the American Civil Liberty Union applauded the ruling and hope it affects the rising number of legislation targeting transgender youths.
“We hope today’s ruling sends a message of hope to the trans youth of West Virginia,” ACLU of West Virginia legal director Aubrey Sparks said. “And a message of warning to politicians who continue to dehumanize this vulnerable population.”
A lengthy collection of interested parties, including five former female Olympic rowers, Christian and conservative organizations, and 17 states such as Arkansas and Virginia, submitted briefs supporting West Virginia.
“Amici understand that the well-being of transgender athletes is an area of deep concern and agree they should have a venue for athletic competition,” rowers Mary I. O’Connor, Carol Brown, Patricia Spratlen Etem, Valerie McClain and Jan Palchikoff wrote in their brief. “However, promoting the rights of one group by discriminating against another does not constitute a just solution, and is an unfair burden for women to carry."
The case will return to the lower court with instructions to grant summary judgment on B.P.J.’s Title IX claim and for further proceedings consistent with this opinion on the equal protection claim.
West Virginia’s Attorney General Patrick Morrisey said in a statement that he plans to appeal the ruling.
“I will keep fighting to safeguard Title IX. We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field,” Morrisey said. “We know the law is correct and will use every available tool to defend it.”
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