Constitutional: West Virginia transgender sports law violates Title IX

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Where the district court ruled against an athlete challenging a West Virginia law that prevents transgender girls from playing on girls teams, it erred. The athlete was entitled to summary judgment on her Title IX claims.

Background

A West Virginia law provides that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex,” while defining “male” as “an individual whose biological sex determined at birth is male.” Because West Virginia law and practice have long provided for sex-differentiated sports teams, the Act’s sole purpose — and its sole effect — is to prevent transgender girls from playing on girls teams.

The question is whether the Act may lawfully be applied to prevent a 13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade from participating in her school’s cross country and track teams. Ruling on the parties’ cross-motions for summary judgment, the court rejected the student’s claims that the Act violated the Equal Protection Clause and Title IX.

Procedural matters

Before the district court, the West Virginia Secondary Schools Activities Commission chose not to “argue the merits” and instead “only” sought summary judgment on the ground “that it is not a state actor and is therefore not subject to scrutiny under either the Equal Protection Clause or Title IX.” The court rejected that argument, and thus denied the Commission’s motion for summary judgment, while also denying B.P.J.’s summary judgment motion and granting those filed by the remaining defendants.

Because the district court’s written judgment—unlike the opinion it implemented — “resolved all claims as to all parties” and terminated the district court phase of this litigation, this court has appellate jurisdiction. The court thus dismisses the Commission’s cross appeal “as unnecessary and not properly taken.” “[T]he the judgment we review here rejected [B.P.J.’s] entire suit on the merits.” Because the Commission is not aggrieved by the district court’s judgment, the Commission has no basis to appeal it.

Defendants

Various defendants argue they should not have been named in the suit. The Harrison County Board of Education — a defendant only on B.P.J.’s Title IX claim — protests that it has no policy of excluding transgender girls from girls sports teams and that it would merely be complying with state law if it excluded B.P.J. from such teams. But it is a recipient of federal funds and would, absent a judicial order to the contrary, prevent B.P.J. from participating in girls teams.

Harrison County superintendent Dora Stutler asserts she would “at most … be subject to an injunction” but cannot be found liable for “any monetary award” or attorneys’ fees. That assertion has no consequence at this stage, where no remedy has been imposed and the court is reviewing a district court ruling that all B.P.J.’s claims fail on the merits.

Finally, the Commission renews its argument that it cannot be held liable for violating either the Equal Protection Clause or Title IX. Like the district court, this court is unpersuaded.

Merits

The district court erred in granting summary judgment to the defendants on both of B.P.J.’s claims. While it would be inappropriate to direct a grant of summary judgment to B.P.J. on her equal protection claims, the district court erred in not granting summary judgment to B.P.J. on her Title IX claims. The court thus vacates in part, reverses in part and remands with instructions to grant summary judgment on B.P.J.’s Title IX claim and for further proceedings consistent with this opinion.

So ordered.

Concurring/dissenting opinion

Agee. J., concurring in part and dissenting in part:

I agree with the majority that we have jurisdiction over this appeal, that the Commission had no basis to appeal from the district court’s decision and that all of the defendants were properly named in this action. I cannot join the rest of the majority’s opinion, however, because West Virginia may separate its sports teams by biological sex without running afoul of either the Equal Protection Clause or Title IX.

B.P.J. v. West Virginia State Board of Education, Case Nos. 23-1078, 23-1130, Apr. 16, 2024. 4th Cir. (Heytens), from SDWVA at Charleston (Goodwin). Joshua A. Block for Appellants/Cross-Appellees. Lindsay Sara See and Roberta Frances Green for Appellees/Cross-Appellants. VLW 024-2-110. 68 pp.