The Oldest Blog
A first amendment blog for school administrators and attorneys.
On April 6, the Supreme Court allowed a transgender female middle schooler in West Virginia to compete on her school’s track team while a challenge to a state ban on transgender students playing school sports proceeds through the courts. The upshot of the Court’s action is that the justices have passed on their first opportunity—at an early stage of a related appeal—to enforce a state ban on transgender students’ participation in school sports. This hotly contested issue will continue to percolate in the lower courts and may return to the Supreme Court for detailed consideration in the future.
Here is the backstory. In April 2021, the West Virginia state legislature passed, and the state’s governor signed into law, H.B. 3293, a blanket ban on transgender girls playing on all school-sponsored girls’ sports teams from middle school through college. The West Virginia law requires all male and female sports teams in the state’s public secondary schools and colleges to permit participants based on a student’s “biological sex,” or their sex as defined at birth. The law also specifically provides that female teams shall not be open to transgender female students. Several other states have passed or are considering adopting similar bans on transgender students’ participation on sports team that correspond with their gender identity.
In July 2021, B.P.J., a transgender female who was then 11 years old, sought to join her middle school track team and challenged H.B. 3293 in court. B.P.J. claimed that the law violates the Fourteenth Amendment’s guarantee of equal protection and violates Title IX, the federal prohibition against gender discrimination that applies to schools which receive federal funding. She argued that H.B. 3293 treats her worse than similarly-situated female students because B.P.J. cannot join the track team which corresponds to her gender identity.
When B.P.J. filed suit in 2021, the federal district court in West Virginia initially entered a preliminary injunction, which prohibited the state from enforcing H.B. 3293 against B.P.J. while the case moved forward. This injunction allowed B.P.J. to participate on the school track team. As a result, she joined the team for the next three seasons. The state did not appeal the preliminary injunction decision.
After the parties in the case completed discovery, in January 2023 the West Virginia federal court granted summary judgment to the government and determined that H.B. 3293 does not violate the Constitution or Title IX. The district court ruled that the law could be enforced against B.P.J. It determined that the statute’s requirement that students participate in sports based solely on their biological sex was “substantially related to an important government interest.” The court refused to stay the decision pending an appeal.
B.P.J. appealed the district court’s decision to the United States Court of Appeals for the Fourth Circuit. Because she had been participating on the girls’ track team throughout the pendency of the case and wanted to continue to do so for the Spring 2023 season, B.P.J. asked the Fourth Circuit to stay the district court’s decision while her appeal was pending. On February 22, the Fourth Circuit agreed and issued an injunction pending appeal that enjoined the district court’s order and allowed B.P.J. to play sports this Spring. The Fourth Circuit set the case for an expedited merits briefing schedule, and briefing is expected to be completed by June 2023.
West Virginia asked the Supreme Court to vacate the Fourth Circuit’s injunction and allow the state to enforce H.B. 3293 against B.P.J. immediately, while her appeal proceeded in the lower appellate court. The state argued that the Fourth Circuit’s decision “harms girls by displacing them from athletic standings and women’s sports teams” and “harms the voters of West Virginia by cancelling their legislative choices by flat judicial decree.” The state also argued that B.P.J. is not likely to succeed on the merits of her equal protection and Title IX claims, and that the appellate courts are ultimately likely to rule against her and uphold the district court’s decision.
B.P.J. argued before the Supreme Court that she has already participated on the girls’ track team for multiple seasons without harming anyone. B.P.J. claimed that the district court’s original grant of a preliminary injunction, which the state never appealed, should continue to control while the case proceeds, and that West Virginia failed to meet the Court’s standards for “extraordinary relief” in the form of reversal of the Fourth Circuit’s injunction pending appeal. Further, B.P.J. argued that she is likely to succeed on the merits of her constitutional and Title IX claims. In particular, she asserts that the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, which prohibits employment discrimination based on transgender status under Title VII, “applies to Title IX and prohibits discrimination against transgender students.” B.P.J. also relies on the Fourth Circuit’s 2020 decision in Grimm v. Gloucester County School Board, where the court held that a school policy prohibiting a transgender boy from using the boys’ restroom unlawfully discriminated against him in violation of Title IX and the Equal Protection Clause.
The Supreme Court ruled in B.P.J.’s favor and allowed her to remain on the girls’ track team, for now.
That brings us to the Supreme Court’s April 6 decision. With two justices dissenting, the Court denied West Virginia’s request to lift the Fourth Circuit’s injunction and allow the state to immediately enforce H.B. 3293 to ban B.P.J. from participating on the girls’ track team while her appeal continues. This means the Fourth Circuit’s injunction pending appeal stays in place, and B.P.J. can continue to run track while she tries to obtain a reversal in the Fourth Circuit of the trial court’s decision that H.B. 3293 is enforceable.
The Court did not issue an opinion explaining its decision in B.P.J.’s favor. Justices Alito and Thomas dissented from the Court’s decision and would have allowed West Virginia to enforce its law immediately. In a brief dissenting opinion, Justice Alito wrote that a lower appellate court panel should not be allowed to enjoin “a duly enacted state law on an important subject without a word of explanation,” when the district court examined the facts and ruled in the state’s favor. Moreover, Justice Alito wrote that “the generally applicable stay factors justify” ruling in West Virginia’s favor. While he did not elaborate, this brief statement by Justice Alito suggests he believes B.P.J. is ultimately unlikely to succeed on the merits of her appeal and obtain a ruling that H.B. 3293 violates the Constitution and/or Title IX.
The Supreme Court’s decision is a procedural one and was issued in the context of the specific facts and procedural history of B.P.J.’s case. It is, therefore, of limited, if any, precedential value nationwide. At the same time, had the Court ruled in West Virginia’s favor on the injunction issue and allowed the state to immediately bar B.P.J. from running on the girls’ track team, that would have been an indicator that a majority of the Court is likely to find that state prohibitions against transgender students playing sports on teams that conform to their gender identity are constitutional and do not violate Title IX. Instead, the justices chose, for now, to leave those issues for future consideration.
Notably, on the same day, the federal Department of Education proposed an amendment to Title IX prohibiting categorical bans on transgender athletes’ participation in school sports, like West Virginia’s H.B. 3293. For more on this important proposal, please refer to the blog post by my colleagues Jackie Gharapour Wernz and Kendra Yoch. And join us for a free webinar on April 14, 2023 at 11:00 AM Central Time to discuss what your school, college, or university should know now about the proposed rule and the Department of Education’s next steps.
We will provide an update when the Fourth Circuit issues its decision in B.P.J.’s appeal. In the meantime, if you have any questions on the Supreme Court’s decision, the current legal landscape governing transgender students’ rights in school, or other student issues, please contact Oleg Nudelman at email@example.com