Transgender Athletes Protected by Title IX, Federal Court Rules
In a decision that could supply the U.S. Supreme Court with an opportunity to clarify the eligibility of transgender athletes nationwide, a three-judge panel on the U.S. Court of Appeals for the Fourth Circuit held last week that Title IX empowers a 13-year-old transgender girl to compete on her school’s cross country and track teams.
B.P.J. v. West Virginia Board of Education et al. centers on a West Virginia statute, originally introduced as the “Save Women’s Sports Act,” that declares girls and women’s teams are not open to “students of the male sex.” The Act defines male as “an individual whose biological sex determined at birth is male.” Judge Toby Heytens wrote the Act’s “sole purpose,” and “sole effect,” are to “prevent transgender girls from playing on girls teams.” The Act is similar to acts in nearly two dozen other states that exclude transgender girls from girls teams.
More from Sportico.com
B.P.J. has publicly identified as a girl since the third grade, and the state issued her a birth certificate that recognized her new name and listed her as a female. Puberty-blocking medication and estrogen hormone therapy, Heytens explained, have led B.P.J. to “develop the outward physical characteristics—including fat distribution, pelvic shape and bone size—of an adolescent female.” B.P.J. raises an Equal Protection Clause claim, which argues the state is treating her differently without sufficient justification, and a Title IX claim, which contends she can’t be excluded from participation on the basis of her sex.
The defendants, which include the Harrison County (West Virginia) Board of Education and the state activities commission, insist participant safety and competitive fairness justify the exclusion of transgender girls. But Heytens wrote the defendants “do not seriously assert that excluding B.P.J.” from a non-contact sport like cross country or track “is substantially related to the government’s important interest in participant safety.”
The government’s interest in competitive fairness, Heytens reasoned, is more plausible. B.P.J. presented expert evidence attempting to debunk this justification. Transgender girls with her “background and characteristics,” she argued, do not possess “inherent, biologically-based” competitive advantages over cisgender girls. The defendants submitted an expert report insisting there are “significant physiological differences” and numerous performance advantages for transgender girls. The judge reasoned more deliberation is warranted at the trial court level to assess the Equal Protection Clause claim.
Yet Heytens cast doubt on the idea the government ought to protect cisgender girls from having to compete against transgender girls “when the result is to harm transgender girls.” He hypothetically asked if a state could justify “otherwise unconstitutional discrimination” when a cisgender girl on a middle school track team drops from 15th place to 16th place at a countywide competition because a girl who also runs track recently moved to the county and ran better. “Of course not,” he wrote. “[T]he government has no interest in protecting one girl’s ranking in any competition” or ensuring that cisgender girls do not ever lose to transgender girls.
Heytens determined the trial court should have granted summary judgment to B.P.J. on her Title IX claim. The judge stressed that discrimination based on gender identity violates Title IX and the Act explicitly discriminates transgender girls—“but not transgender boys”—by barring them from playing on teams “consistent with their gender identity.”
Heytens also stressed that offering B.P.J. a “choice” between playing on a boys team and not playing sports “is no real choice at all.” The judge wrote the defendants cannot realistically expect B.P.J. will “countermand her social transition, her medical treatment and all the work she has done with her schools, teachers and coaches for nearly half her life by introducing herself to teammates, coaches and even opponents as a boy.” Playing on a boys team would also impose on B.P.J. the same risks of unfair competition and physical danger which the defendants claim are worrisome for cisgender girls.
In a dissenting opinion, Judge G. Steven Agee maintained evidence shows B.P.J. “may have a distinct biological advantage over biological girls” and is thus not similarly situated to biological girls. Agee wrote that “ensuring equal opportunities for biological girls requires that they not have to compete against biological boys.” He noted that B.P.J. “repeatedly took opportunities away from biological girls” by consistently placing in the top 15 competitors at events.
Agee also argued the majority misunderstands Title IX, which he wrote “most of the country has understood … to prohibit biological-sex discrimination rather than gender-identity discrimination.” He maintained Title IX, which became law in 1972, is intended to guarantee educational and athletic opportunities for biological women, not to forbid gender identity discrimination.
The ruling comes as a new federal lawsuit, Gaines et al. v. NCAA et al., demands the NCAA rescind the eligibility of transgender athletes. Meanwhile, the National Association of Intercollegiate Athletics recently banned transgender athletes for all women’s sports other than for two co-ed sports, competitive cheer and competitive dance. The Biden administration last week released new Title IX regulations that include harassment over gender identity within the ambit of sex-based harassment but punted on the topic of transgender athletes’ eligibility.
The West Virginia defendants could petition the Fourth Circuit for a rehearing en banc, where, if granted, other judges at the court would consider B.P.J.’s case. If that effort falls short, they could petition the U.S. Supreme Court and hope for a review.
Given the split among states over transgender athlete eligibility and the prospect of multiple federal and state litigations over that issue, the Supreme Court might see a need to weigh in. In Bostock v. Clayton County (2021), the Court held that employment-related sex discrimination outlawed by Title VII of the Civil Rights Act includes discrimination based on being gay or transgender. Title VII is (obviously) a different statute than Title IX, and employment and athletics are different contexts, but to the extent a majority of the Court interpret sex-based anti-discrimination statutes as contemplating gender identity, transgender athletes would be more likely to prevail.
Best of Sportico.com
