B. P. J., et al.,
CIVIL ACTION NO. 2:21-cv-00316
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION
July 21, 2021
MEMORANDUM OPINION & ORDER
A fear of the unknown and discomfort with the unfamiliar have motivated many of the most malignant harms committed by our country‘s governments on their own citizens. Out of fear of those less like them, the powerful have made laws that restricted who could attend what schools, who could work certain jobs, who could marry whom, and even how people can practice their religions. Recognizing that classifying human beings in ways that officially sanction harm is antithetical to democracy, the states ratified the
The matter before me today is a motion to preliminarily enjoin a recently passed state law. Those standing in opposition to this law assert that it was enacted to incite fear and exclude certain persons rather than to address a legitimate government interest. At this point, I have been provided with scant evidence that this law addresses any problem at all, let alone an important problem. When the government distinguishes between different groups of people, those distinctions must be supported by compelling reasons. Having determined that Plaintiff has a likelihood of
I. Plaintiff and Her Claims
B.P.J. is an eleven-year-old girl preparing to begin the sixth grade at a new school. Like many of her peers, B.P.J. intends to participate in school athletics. She hopes to join both the girls’ cross country and track teams. However, B.P.J. was informed by her school that because of a new statute, she will no longer be permitted to join either team because she is a transgender girl.
For a definition of terms such as gender identity,1 gender dysphoria,2 cisgender,3 etc., I refer to the meticulously researched and written opinion in Grimm v. Gloucester County School Board, 972 F.3d 586, 594-597 (4th Cir. 2020). I adopt the definition of transgender used in that opinion. “‘Transgender’ is . . . ‘used as an umbrella term to describe groups of people who transcend conventional expectations of gender identity or expression.‘” Grimm, 972 at 596 (quoting PFLAG, PFLAG National Glossary of Terms (July 2019), http://pflag.org/glossary).
B.P.J. writes in depth about her history—revealing publicly what are inherently private details—to educate both the court and public. B.P.J. is a transgender girl who, while assigned the sex of male at birth, knew from a young age that she is a girl. [ECF No. 64, ¶ 31]. By the third grade, B.P.J. was living as a girl at home but dressing as a boy at school. Id. B.P.J. then asked to change her name to a name commonly associated with girls and began living as a girl in both public and private. Id. B.P.J. also joined her elementary school‘s all-girl cheerleading team. Id. at ¶ 36. B.P.J. practiced and competed with this team without incident.
B.P.J. was diagnosed with gender dysphoria in 2019. Id. at ¶ 33. She began puberty-delaying treatment on June 15, 2020, to treat that condition.4 Plaintiff avers that this treatment, which prevents endogenous puberty and therefore any physiological changes caused by increased testosterone circulation, prevents her from developing any physiological advantage over other girl athletes.5
In her complaint, B.P.J. alleges that Defendants Burch, Stutler, the WVSSAC, and Attorney General Morrisey deprived her of the equal protection guaranteed to her by the
The motion for a preliminary injunction that accompanies her complaint seeks relief only insofar as this law applies to her. That is, granting this motion will only prevent the State and other Defendants from enforcing
II. The Law
On March 18, 2021, ten delegates in the West Virginia House of Delegates introduced House Bill 3293, strategically referred to as the “Save Women‘s Sports Bill.” West Virginia Governor Jim Justice signed the bill into law on April 28, 2021, and it was codified as
The statute begins by noting that “[t]here are inherent differences between biological males and biological females, and that these differences are cause for celebration, as determined by the Supreme Court of the United States in United States v. Virginia (1996).”
(1) “Biological sex” means an individual‘s physical form as a male or female based solely on the individual‘s reproductive biology and genetics at birth.
(2) “Female” means an individual whose biological sex determined at birth is female. As used in this section, “women” or “girls” refers to biological females.
(3) “Male” means an individual whose biological sex determined at birth is male. As used in this section, “men” or “boys” refers to biological males.
Using these definitions, the gravamen of the statute requires that “[i]nterscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by any public secondary school or a state institution of higher education,” “shall be expressly designated as one of the following based on biological sex: (A) Males, men, or boys; (B) Females, women, or girls; or (C) Coed or mixed.”
The State asserts that the objective of the statute is to provide equal athletic opportunities for female athletes and to protect the physical safety of female athletes when competing. [ECF No. 49, at 7]. Plaintiff argues that the State‘s assertion is a façade concealing the true objective: to exclude transgender girls and women from participating in sports.
III. The Preliminary Injunction
The United States Supreme Court and the United States Court of Appeals for the Fourth Circuit have provided district courts with a precise analytical framework for determining whether to grant preliminary injunctive relief. First, B.P.J. must make a clear showing that she will likely succeed on the merits. Second, she must make a clear showing that she is likely to be irreparably harmed absent preliminary relief. Third, she must show that the balance of equities tips in her favor. Finally, B.P.J. must show that an injunction is in the public interest. All four requirements must be satisfied. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008); The Real Truth About Obama, Inc. v. Federal Election Commission, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds, 130 S. Ct. 2371 (2010).
a. Likelihood of Success on the Merits
As required by Natural Resource Defense Counsel, I must first determine if B.P.J. has demonstrated a clear likelihood of success on the merits of either her Equal Protection Claim or her Title IX Claim. I will address each in turn.
i. Equal Protection Claim
The Equal Protection Clause of the
The first step in an equal protection analysis is to determine what level of scrutiny I must apply to
Essentially, the State contends that the Equal Protection Clause is not being violated because B.P.J. is being treated the same under this law as those she is similarly situated with: “biological males” as defined by
The Fourth Circuit answered that question in Grimm. Stare decisis requires that I apply intermediate, or heightened, scrutiny to laws that classify people according to transgender status. Grimm arrived at this conclusion from two different directions. First, Grimm finds that discrimination against transgender people is inherently based in sex, and therefore the level of scrutiny applicable to sex discrimination applies to transgender discrimination. 972 F.3d at 607. In the alternative, Grimm finds that transgender people are a quasi-suspect class and therefore entitled to intermediate scrutiny of laws that treat them differently than non-transgender people. Id.
To survive a review under intermediate scrutiny, the government must provide an “exceedingly persuasive justification” for the classification created by a law or policy. Mississippi Univ. For Women v. Hogan, 458 U.S. 718, 724 (1982). At a minimum, the government must show that “the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Id. A law discriminating against a quasi-suspect class “must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” United States v. Virginia, 518 U.S. 515, 533 (1996) (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 648 (1975)).
“Under intermediate scrutiny, the government bears the burden of establishing a reasonable fit between the challenged statute and a substantial governmental objective.” United States v. Chapman, 666 F.3d 220, 226 (4th Cir. 2012) (citing United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010)). The party defending the statute must “present[] sufficient probative evidence in support of its stated rationale for enacting a gender preference, i.e., . . . the evidence [must be] sufficient to show that the preference rests on evidence-informed analysis rather than on stereotypical generalizations.” H.B. Rowe Co. v. Tippett, 615 F.3d 233, 242 (4th Cir. 2010) (quoting Eng‘g Contractors Ass‘n of S. Fla. v. Metropolitan Dade Cnty., 122 F.3d 895, 910 (11th Cir. 1997)); Concrete Works of Colorado, Inc. v. City and Cnty. of Denver, 321 F.3d 950, 959 (10th Cir. 2003) (“[T]he gender-based measures . . . [must be] based on ‘reasoned analysis rather than [on] the mechanical application of traditional, often inaccurate, assumptions.‘” (quoting Mississippi Univ. for Women, 458 U.S. at 726)).
Here, the State‘s proffered objective for the statute is to provide equal athletic opportunities for female athletes and to protect female athletes while they participate in athletics. [ECF No. 49, at 7]. B.P.J. argues that I should reject this offered objective and instead find that the State‘s true objective is to exclude transgender women and girls from participating in state-sponsored athletics. While I need not do so, Virginia, 518 U.S. at 536, I will proceed as if the State‘s offered objective is genuine. Regardless, I find that this statute as applied to B.P.J. is not substantially related to providing equal athletic opportunities for girls.
As described at length in her memorandum in support of her motion for a preliminary injunction, B.P.J. has been living publicly as a girl for over a year at this point. As part of treating her gender dysphoria, B.P.J. has been on puberty delaying drugs for over a year. As a result, B.P.J. has not undergone and will not undergo endogenous puberty, the process that most young boys undergo that creates the physical advantages warned about by the State.
B.P.J. has provided evidence that any physical advantages that men and boys enjoy are derived from higher concentrations of circulating testosterone. This is supported by both the NCAA policy6 and the International Olympic Committee‘s policy7 that permit transgender women to compete on teams that align with their gender identity so long as those athletes receive testosterone suppressing treatment. According to B.P.J.‘s experts, “there is a medical consensus that the difference in testosterone is generally the primary known driver of differences in athletic performance between elite male athletes and elite female athletes.” [ECF No. 2-1, Safer Decl., at 6–7].
The Defendant cites to an expert who asserts that for transgender athletes who have undergone endogenous puberty, later suppression of testosterone does not eradicate all competitive advantage. [ECF No. 49, Ex. G]. Like Judge Nye in the District of Idaho, I find this opinion unpersuasive. See Hecox v. Little, 479 F. Supp. 3d 930, 980 (D. Idaho 2020). While that argument may be relevant to a facial challenge of the statute, it is irrelevant to this as-applied analysis. B.P.J. has not undergone endogenous puberty and will not so long as she remains on her prescribed puberty blocking drugs. At this preliminary stage, B.P.J. has shown that she will not have any inherent physical advantage over the girls
Further, permitting B.P.J. to participate on the girls’ teams would not take away athletic opportunities from other girls. Transgender people make up a small percentage of the population: 0.6% of the adult population generally, and 0.7% of thirteen- to seventeen-year-olds. Herman, Flores, Brown, et al., Age of Individuals Who Identify as Transgender in the United States, The Williams Institute (Jan. 2017), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Age-Trans-Individuals-Jan-2017.pdf. The number of transgender people who wish to participate in school-sponsored athletics is even smaller. Insofar as I am aware, B.P.J. is the only transgender student at her school interested in school-sponsored athletics. Therefore, I cannot find that permitting B.P.J. to participate on the girls’ cross country and track teams would significantly, if at all, prevent other girl athletes from participating.
Finally, as applied to B.P.J., this law cannot possibly protect the physical safety of other girl athletes. Cross country and track are not contact sports. The physical ability of one athlete does not put another in danger in the way it might in another sport like football or hockey.
As applied to B.P.J.,
ii. Title IX
Success on her Title IX claim would require B.P.J. to show “(1) that [she] was excluded from participation in an education program ‘on the basis of sex‘; (2) that the educational institution was receiving federal financial assistance at the time; and (3) that improper discrimination caused [her] harm.” Grimm, 972 F.3d at 616 (citing Preston v. Va. ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir. 1994)). There is no question that Defendants named in this case received federal funding or that the athletic programs run by Harrison County are part of an education program. Recognizing this, what remains to be determined is whether B.P.J has demonstrated that she will likely succeed in proving that she is being excluded on the basis of sex and that she was harmed by unlawful discrimination.
That B.P.J. is being excluded from school athletics on the basis of her sex is clear. Like the Fourth Circuit‘s decision in Grimm, I “have little difficulty holding” that
Again, as in Grimm, I also have little difficulty finding that B.P.J. is harmed by this law. All other students in West Virginia secondary schools—cisgender girls, cisgender boys, transgender boys, and students falling outside of any of these definitions trying to play on the boys’ teams—are permitted to play on sports teams that best fit their gender identity. Under this law, B.P.J. would be the only girl at her school, as far as I am aware, that is forbidden from playing on a girls’ team and must join the boys’ team. Like the discriminatory policy in Grimm, this law both stigmatizes and isolates B.P.J.
b. Irreparable Harm
When a party has shown a likelihood of a constitutional violation, the party has shown an irreparable harm. Henry v. Greenville Airport Comm‘n, 284 F.2d 631, 633 (4th Cir. 1960). Forcing a girl to compete on the boys’ team when there is a girls’ team available would cause her unnecessary distress and stigma. In addition to the harm to B.P.J., requiring her to compete on the boys’ team would also be confusing to coaches and teammates. And not only would B.P.J. be excluded from girls’ sports completely; she would be excluded because of who she is: a transgender girl. Having found above that her exclusion is likely to be in violation of the Equal Protection Clause and Title IX, I find that B.P.J. has demonstrated that she will be irreparably harmed if this law were to take full effect.
c. Balance of Equities and the Public Interest
Where, as here, the government is a party, the “balance of the equities” and “public interest” prongs of the preliminary injunction test merge. Nken v. Holder, 556 U.S. 418, 435 (2009). In evaluating the balance of the equities, courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24. It is always in the public interest to uphold constitutional rights. Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 191 (4th Cir. 2013).
It is clearly in the public interest to uphold B.P.J.‘s constitutional right to not be treated any differently than her similarly situated peers because any harm to B.P.J.‘s personal rights is a harm to the share of American rights that we all hold collectively. The right not to be discriminated against by the government belongs to all of us in equal measure. It is that communal and shared ownership of freedom that makes up the American ideal. The American ideal is one “that never has been yet—And yet must be—the land where every man is free.” Let America be America Again, Langston Hughes.
Plaintiff B.P.J.‘s Motion for a Preliminary Injunction is GRANTED.
IV. Bond Requirement
Plaintiff also seeks to waive the bond required by
For the reasons stated above, Plaintiff‘s Motion for a Preliminary Injunction [ECF No. 2] is GRANTED. While this case is pending, Defendants are enjoined from enforcing
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. The court further DIRECTS the Clerk to post a copy of this published opinion on the court‘s website, www.wvsd.uscourts.gov.
ENTER: July 21, 2021
JOSEPH R. GOODWIN
UNITED STATES DISTRICT JUDGE