By Lisa M. Hawrot

On April 16, 2024, the U.S. Court of Appeals for the Fourth Circuit determined that because West Virginia law and practice have long provided for sex-differentiated sports teams, the sole purpose of the West Virginia "Save Women's Sports Act" (Act) is to prevent transgender girls from playing on girls' sports teams. It further determined that the Act cannot be lawfully applied to prevent a 13-year-old transgender girl who takes puberty-blocking medication and has publicly identified as a girl since third grade from participating in her school's cross country and track teams. 

The Act contains provisions on how sports teams are to be designated as "male," "female," or "co-ed or mixed." It discusses how teams or sports designated for females, girls, or women are not open to males when the selection for the teams is based on competitive skill or it is a contact sport. Females, however, are not barred from participating in any team. The Act defines a "male" and "female" based upon biological sex determined at birth and defines "biological sex" as being solely based upon the individual's reproductive biology and genetics at birth.

The child at issue in this case is currently an eighth-grade student known as B.P.J. Her sex at birth was male and she has publicly identified as female since third grade. B.P.J. also takes puberty-blocking hormones. B.P.J. has argued that enforcement of the Act against her violates the Equal Protection Clause and Title IX. As to the issues in this case, the Fourth Circuit concluded that it would be inappropriate to grant B.P.J. summary judgement on her Equal Protection claim. The specific question before the Fourth Circuit was whether the decision to exclude B.P.J. from the teams she wanted to join was substantially related to an important government interest. The Fourth Circuit analysis probed into the defendant's arguments and concluded that the position that all cisgender girls are entitled to be protected from competition from all transgender girls, even when the result is harm to transgender girls, was flawed as there is no governmental interest in protecting one girl's ranking in a competition or in ensuring that cisgender girls do not ever lose to transgender girls. The Fourth Circuit then focused on the fact that B.P.J. has been receiving puberty blockers and thus has never experienced elevated levels of testosterone and has also been receiving gender affirming hormone therapy. However, the final and perhaps most meaningful portion of the Fourth Circuit's decision came in considering this question: Even without going through what is called the "Tanner 2" stage of puberty, do individuals whose sex is assigned at birth as male have a meaningful competitive athletic advantage over cisgender girls? On this point, the Fourth Circuit determined that a genuine issue of material fact exists and the district court erred in granting B.P.J. summary judgment on the Equal Protection claim.

In contrast, the Fourth Circuit concluded that the district court did err in not granting summary judgement to B.P.J. on her Title IX claim. Using some of the analysis from the Equal Protection claim, the Fourth Circuit concluded that since B.P.J. can show both worse treatment based on sex and resulting harm, applying the Act to her would violate Title IX. It concluded that the Act forbids one and only one category of students from participating in sports teams corresponding with their gender and that is transgender girls. Thus, the Title IX issue was remanded with instructions to grant summary judgment to B.P.J. on this claim.

Initially, this seems to be a case that certainly could make it to the U.S. Supreme Court. However, whether or not the U.S. Supreme Court will take up this issue, let alone what it might decide, is up for debate. Both the Fourth Circuit and the original district court's ruling granting the preliminary injunction emphasized that B.P.J. was only seeking relief as the law applied to her. The Fourth Circuit went further in its opinion and stated that it was not holding that government officials are forbidden from creating separate sports teams for boys and girls or that Title IX requires schools to allow every transgender girl to play on girls' teams. Thus, because this case has been so narrowly construed, it could provide the U.S. Supreme Court with an "out" to not accept it and avoid addressing this issue on a larger scale.

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