Federal appeals court rules in favor of allowing boys in girls sports

(The Daily Signal) – What does it take for a federal court to reach the outcome it wants—instead of the outcome that the law demands? Apparently, just some creative judicial…

(The Daily Signal) – What does it take for a federal court to reach the outcome it wants—instead of the outcome that the law demands? Apparently, just some creative judicial gymnastics.

That’s what happened Tuesday with a panel of judges on the U.S. Court of Appeals for the 4th Circuit when it overturned a lower court decision and struck down West Virginia’s Save Women’s Sports Act, a law that keeps scholastic sports in the state separated by biological sex.

The appeals court’s rationale?

Biological girls and transgender “girls” (biological males) are exactly the same.  

In BPJ v. West Virginia Board of Education, Judge Toby Heytens, a Biden appointee, was joined by Judge Pamela Harris, an Obama appointee, in determining that the state school board had violated Title IX of the Education Amendments of 1972. That’s the federal civil rights law that prohibits sex discrimination in all federally funded education programs.

The appeals court also held that the West Virginia law likely violated the 14th Amendment’s equal protection clause, which guarantees all individuals equal treatment under the laws of the United States.  

Significant to the litigation history is the fact that BPJ—a boy in middle school—beat female competitors in over 100 track events more than 280 times while he was on puberty blockers, busting the myth that boys on hormones have no athletic advantage over biological females.

The case also prompted an op-ed by a girl athlete at a West Virginia middle school, who wrote that “if boys get to play on girls’ teams, the team that I love so much would go away. We would end up with two boys’ teams: one of boys who call themselves boys, and one of boys who identify as girls but dominate and control the girls’ team.”

Classifications based on sex require intermediate scrutiny review under the Constitution’s equal protection clause. Specifically, the law at issue must serve an important government interest and be substantially related to achieving that purpose.

Writing for the court, Heytens emphastated that the effect of West Virginia’s law was to “exclude transgender girls from the definition of ‘female’ and thus to exclude them from participation on girls sports teams.”

“That is a facial classification based on gender identity,” the judge wrote. “And, under this court’s binding precedent, such classifications trigger intermediate scrutiny.”

But Heytens simply ignored the fact that the Supreme Court never has held transgender individuals to be a “suspect” or “quasi-suspect” class for whom the Constitution demands heightened, intermediate scrutiny review.

Nor has the Supreme Court ever held that transgender “girls” are the same as biological girls. Nor has it ever held that sex is the same as gender identity.

Not even in Bostock v. Clayton County did the Supreme Court make such a determination. In fact, Justice Neil Gorsuch began his opinion in that case by saying that “we proceed on the assumption that ‘sex’ signified what the employers suggest, referring only to biological distinctions between male and female.”

None of this mattered to the 4th Circuit, though.

Heytens wrote that West Virginia had failed to demonstrate that its goals of “participant safety and competitive fairness” were substantially related to their decision to exclude BPJ—again, a biological boy on puberty-blocking hormones—from girls’ athletics.

This was especially so, he wrote, because BPJ “presented evidence that transgender girls with her background and characteristics possess no inherent, biologically-based competitive advantages over cisgender girls when participating in sports.”

I think more than 100 middle school girls in West Virginia would beg to differ.

As for BPJ’s secondary challenge to the Save Women’s Sports Act, the appeals court found that the state law violated Title IX by treating BPJ worse than similarly situated people, depriving “her” of any meaningful athletic opportunities on the basis of “sex.”

Heytens determined that the “stigma of being unable to participate on a team with one’s friends and peers” (citing the court’s own opinion in Grimm v. Gloucester County) was harm sufficient enough to prove a violation of Title IX.

The court vacated the lower court’s decision in part, reversed it in part, and remanded the case with instructions both to enter summary judgment for BPJ on the Title IX claims and to develop an additional factual record regarding BPJ’s argument that the school’s actions violated the 14th Amendment’s equal protection clause.

In a scathing dissent, Judge G. Steven Agee (a George W. Bush appointee) wrote that the majority “inappropriately expands the scope of the Equal Protection Clause and upends the essence of Title IX.”

Noting that BPJ “dominated” girls track meets, Agee stressed that the majority erroneously concluded that biological boys are similarly situated to biological girls, ignoring the fact that biology is relevant in sports.

He wrote that it was irrelevant that BPJ identified as a girl because “gender identity, simply put, has nothing to do with sports.” BPJ was being treated the same as all the other biological male athletes in West Virginia schools and so there had been no discrimination.

In fact, PBJ’s participation in girls track did exactly what West Virginia was trying to prevent: taking opportunities away from biological girls.

In addressing the majority’s Title IX determination, Agee noted that the court effectively had reversed the “monumental work Title IX has done to promote girls’ sports from its inception.” He pointed out that Title IX regulations expressly permit schools to separate sports teams by biological sex.

What’s more, to reach its desired outcome, the majority had to contort its reasoning to conclude that “sex” unambiguously meant “gender identity.” It defies logic, Agee wrote, to say that when Title IX was enacted in 1972, everyone implicitly understood that sex also meant gender identity.

“If Congress so intended,” Agee wrote, “it should have explicitly said so. It did not.”  

“Women and young girls deserve to compete on a level playing field,” Rachel Rouleau, a senior counsel with Alliance Defending Freedom who was one of the attorneys representing the West Virginia Board of Education, said in response to the decision.

“The court’s decision undermines equal opportunities and contradicts both biological reality and common sense,” Rouleau said. “Title IX was designed to provide women with fair competition, and West Virginia’s women’s sports law does the same.”

Alliance Defending Freedom is mulling an appeal to the Supreme Court.

Here’s hoping that West Virginia—and the girls displaced by BPJ—are vindicated eventually. And that a bad decision, relying on a foundation of bad legal interpretation, doesn’t stand for long.