550 F.Supp.3d 347
S.D.W. Va2021Background
- Plaintiff B.P.J. is an 11‑year‑old transgender girl who has lived and presented as female for years, has been treated for gender dysphoria, and has been on puberty‑blocking medication since June 2020.
- West Virginia enacted Section 18‑2‑25d, which defines “biological sex” as sex at birth and requires publicly sponsored school athletic teams to be designated by biological sex; teams for females may exclude students of the male sex.
- School officials notified B.P.J. she could not join girls’ cross country or track under the new statute; she sued state education entities and officials seeking an as‑applied preliminary injunction preventing enforcement against her and alleging violations of the Equal Protection Clause and Title IX.
- The State defended the statute as aimed at protecting equal athletic opportunities for (biological) female athletes and their safety; plaintiffs say the law targets and excludes transgender girls.
- The court evaluated the Winter preliminary‑injunction factors and, finding likelihood of success on both Equal Protection (intermediate scrutiny) and Title IX claims as applied to B.P.J., granted the preliminary injunction and waived the bond requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the law creates an impermissible classification | The statute discriminates against transgender girls by excluding them from girls’ teams; B.P.J. is similarly situated to other girls | The law classifies by "biological sex" and treats all biological males the same, so it does not target transgender status | Court: statute discriminates on basis of transgender status/sex; Grimm requires intermediate scrutiny for such classifications; B.P.J. is similarly situated to other girls |
| Whether the statute survives intermediate (heightened) scrutiny as applied | The statute is not substantially related to protecting girls’ opportunities or safety as applied to B.P.J., who has not undergone endogenous puberty and is on blockers; allowing her would not burden others | The statute furthers important interests in equal opportunities and safety for female athletes | Court: as applied to B.P.J., the law is not substantially related to the State’s objectives; plaintiff likely to succeed on Equal Protection claim |
| Whether Title IX bars exclusion "on the basis of sex" | Exclusion of a transgender girl from girls’ teams is discrimination on the basis of sex; she suffered stigma and exclusion | The statute is based on biological sex, not unlawful sex discrimination | Court: likely to succeed on Title IX claim—exclusion is on basis of sex and causes harm |
| Preliminary‑injunction factors (irreparable harm, balance/public interest, bond) | Exclusion would cause irreparable stigma, distress, and confusion; public interest favors upholding constitutional rights; request to waive bond | State cites safety/competitive fairness public interest | Court: irreparable harm shown; balance/public interest favor injunction; bond waived |
Key Cases Cited
- Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020) (applies intermediate scrutiny to transgender classifications and treats such discrimination as sex‑based)
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (discrimination against transgender persons is discrimination "because of sex")
- United States v. Virginia, 518 U.S. 515 (1996) (requires that sex‑based classifications not rest on overbroad generalizations)
- Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (sex‑based classifications demand an "exceedingly persuasive justification")
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (framework and standards for preliminary injunctions)
- Hecox v. Little, 479 F. Supp. 3d 930 (D. Idaho 2020) (district court analysis of a similar "women’s sports" statute)
- City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (Equal Protection: similarly situated persons should be treated alike)
- Nken v. Holder, 556 U.S. 418 (2009) (when government is a party, balance of equities and public interest considerations merge)