West Virginia Transgender Athlete Ban Put on Hold During Appeal

A West Virginia middle school student won a freeze on the enforcement of a state law barring transgender female athletes from participating on girls’ school sports teams as a federal appeals court considers the case.

A divided panel of the US Court of Appeals for the Fourth Circuit Wednesday stayed a Jan. 5 order of the US District Court for the District of West Virginia dissolving its preliminary injunction after finding the law constitutional.

No federal appeals court has yet ruled on the constitutionality of a state’s transgender athlete ban. The US Court of Appeals for the Eleventh Circuit, however, ruled Dec. 30 in a divided opinion that Florida separating school bathrooms based on “biological sex” is constitutional and doesn’t violate Title IX.

• Fourth Circuit Judges Pamela A. Harris and Toby J. Heytens concurred in the order reinstating the West Virginia injunction. Judge G. Steven Agee dissented
• The trial court found student B.P.J.'s equal protection claim fails because “the legislature’s definition of ‘girl’ as being based on ‘biological sex’ is substantially related to the important government interest of providing equal athletic opportunities for females”
• The Title IX claim fails because the federal statute “authorizes sex separate sports in the same manner as H.B. 3293, so long as overall athletic opportunities for each sex are equal,” district court Judge Joseph R. Goodwin ruled
• Idaho, in September 2020, asked the Ninth Circuit to overturn a preliminary injunction barring the enforcement of its transgender athlete ban while the suit challenging the law went forward. That appeals court is set to rule on the state’s mootness and standing arguments
• A Seventh Circuit challenge to an injunction barring enforcement of the state’s transgender athlete ban against a grade school student was dismissed as moot after the student transferred to a charter school

The American Civil Liberties Union, Lambda Legal, and Cooley LLP represent B.P.J. Bailey & Wyant PLLC represents the West Virginia Board of Education and State Superintendent W. Clayton Burch. Steptoe & Johnson LLP represents Harrison County Board of Education and Harrison County Superintendent Dora Stutler. Shuman McCuskey Slicer PLLC and Miller & Amos represent the West Virginia Secondary School Activities Commission.

The case is B.P.J. v. W.Va. State Bd. of Educ., 4th Cir., No. 23-01078, order 2/22/23.