Case: B. P. J. v. West Virginia State Board of Education

2:21-cv-00316 | U.S. District Court for the Southern District of West Virginia

Filed Date: May 26, 2021

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Case Summary

On May 26, 2021, the plaintiff, an 11-year-old transgender girl and student in Harrison County, West Virginia filed this lawsuit through her mother in the U.S. District Court for the Southern District of West Virginia. Represented by the ACLU of West Virginia, with attorneys from the ACLU, Lambda Legal and Cooley LLP, the plaintiff challenged an April 2021 state statute, H.B. 3293, that banned girls who are transgender from participating in school sports consistent with their gender identity. The plaintiff sued the WV State Board of Education (“WVBOE”), the Harrison County Board Of Education, WV Secondary School Activities Commission (“WVSSAC”), and state employees under the Fourteenth Amendment, 42 U.S.C. § 1983, and Title IX of the Education Amendments of 1972 (“Title IX”). The plaintiff sought declaratory and injunctive relief, nominal damages, attorney fees and costs, and any other relief that the Count deemed just and proper. This case was assigned to Judge Joseph R. Goodwin.

H.B. 3293 was written to limit the participation on single-sex secondary school and college girls athletic teams to girls assigned female at birth. The statute did not have a parallel provision for boys’ sports teams. Plaintiff participated on an all girls cheerleading team in elementary school, and hoped to join her middle school cross country team in the fall of 2021. However, the passage of H.B. 3293 made it illegal for her to join the the girl’s cross country team, and for her to join the boys team, the principal of her school would have to inform the coaches of both teams that she is transgender so as not to “confuse” them. Additionally, she alleged that joining the boys team would have been psychologically damaging to her by forcing her to act as the boy she is not.

The plaintiff first argued that H.B. 3293 violated Title IX because it discriminated against transgender students on the basis of sex, and the State BOE and County BOE received direct federal financial assistance, and the School Activities Commission received direct and/or indirect federal financial assistance. She also claimed that H.B. 3293 discriminated against transgender girls, and denied them their rights under the Equal Protection Clause of the Fourteenth Amendment.

Also on May 26, 2021, plaintiff filed a motion for a preliminary injunction seeking to enjoin defendants from enforcing H.B. 3293 or otherwise precluding her participation on girls’ school sports teams, and on July 16, 2021, she filed an amended complaint renewing her request for a preliminary injunction. On July 21, 2021 Judge Goodwin granted the motion, enjoining the defendants from enforcing H.B. 3293 against plaintiff during the pendency of the lawsuit and requiring that she be permitted to sign up for and participate in school athletics in the same way as her girl classmates. 550 F.Supp.3d 347 (July 21, 2021).

On September 10, 2021, NCAA college soccer player at West Virginia State University, Lainey Armistead, filed a motion to intervene in opposition to the preliminary injunction that was then allowing plaintiff to run on her middle school cross country team. The court denied Ms. Armistead’s motion to intervene by right, but did grant her motion to intervene permissively on the basis that she represented the class of people for whom H.B. 3293 was intended to benefit, and she would raise different legal arguments than those defendants already involved.

Meanwhile, defendants filed various motions to dismiss. On November 30, 2021, the court granted the parties’ joint motion to dismiss the state attorney general as a party. On December 1, 2021, the court denied the remaining defendants’ motions to dismiss the case for failure to state a claim, holding that the plaintiff had standing, that the suit was ripe for review because no further factual development was required, and that the plaintiff had plausibly alleged discrimination and/or exclusion on the basis of sex.

The case continued to move forward through discovery with depositions, interrogatories and additional requests. On March 30, 2022, the court granted the plaintiff’s motion to strike a jury demand, and because none of the actions the plaintiff had brought triggered the right to a jury trial. In June 2022, the court set a trial date for January 31, 2023. Throughout the later half of 2022 all parties exchanged a flurry of pre-trial motions to dismiss, memoranda, and requests, as well as cross-motions for summary judgment, which the court addressed on January 5, 2023. In an opinion and order filed on that day, the Court denied plaintiff’s motion for summary judgment, denied WVSSAC’s motion for summary judgment, and granted the motions for summary judgment from the state finding the statute constitutional and compliant with Title IX, the court denied all other pending motions as moot and closed the case. The Court explained that the fundamental question at issue was whether West Virginia’s definition of “girl” or “woman” as defined to not include transgender, assigned male at birth, girls was constitutionally permissible in this context. He determined that it was, and therefore that H.B. 3293 was constitutional and complied with Title IX. 2023 WL 111875.

The court addressed two main arguments. First, that the H.B. 3293 violated the Equal Protection Clause of the Constitution, and second, that H.B. 3293 violated Title IX. The court reasoned that the statute was subject to intermediate scrutiny as it separated students based on sex. The court agreed with defendants, however, that it was substantially related to an important government interest because biological males and biological females have different athletic abilities, and therefore to preserve athletic opportunities for girls it was necessary to exclude all “biological males” from female athletics teams. The court also addressed various arguments regarding hormone blockers, and other types of gender affirming care. Though the court agreed that the state could have more narrowly tailored the law to those transgender students who had gone through puberty, had not taken, or did not take puberty blockers, or did not take hormone replacement therapy. Ultimately, however, the court concluded that those concerns would only create additional problems, and it was not the court’s place to write the state’s laws, only to determine their legality.

Next, the court addressed the plaintiff’s claims that H.B. 3293 violated Title IX by excluding transgender girls from school sports teams. The court held that, far from violating Title IX, H.B. 3293 both mirrored and furthered Title IX. Transgender girls were not, in the court's view, excluded from sports, but simply told which teams they may play on. The defendants' motion for summary judgment on the basis that H.B. 3293 was constitutional and complies with Title IX was granted, all other pending motions were denied as moot, and the Preliminary Injunction in place was dissolved.

On January 20, 2023, the plaintiff filed a motion to stay pending appeal, so that she could continue to play on the sports team she had been a part of for the past 18 months, arguing that she would be irreparably harmed without a stay, that no one would be harmed by a stay, and that the there is no one who public interest favored the status quo. On January 24, 2023, the plaintiff filed an appeal with the U.S. Court of Appeals for the Fourth Circuit. On February 7, 2023, the district court denied the plaintiff’s motion for a stay pending appeal. 2023 WL 1805883. On February 22, 2023, however, the Fourth Circuit reversed the district court's order and granted a stay of the January 5, 2023 order pending appeal. 2023 WL 2803113. The appeal is ongoing as of May 2023.

	Document
1 2:21-cv-00316	Complaint	May 26, 2021	May 26, 2021 Complaint
64 2:21-cv-00316	First Amended Complaint	July 16, 2021	July 16, 2021 Complaint
67 2:21-cv-00316	Memorandum Opinion and Order	July 21, 2021	July 21, 2021 Order/Opinion
129 2:21-cv-00316	Memorandum Opinion and Order	Dec. 1, 2021	Dec. 1, 2021 Order/Opinion
130 2:21-cv-00316	Memorandum Opinion and Order	Dec. 1, 2021	Dec. 1, 2021 Order/Opinion
512 2:21-cv-00316	Memorandum Opinion and Order	Jan. 5, 2023	Jan. 5, 2023 Order/Opinion
513 2:21-cv-00316	Judgment Order	Jan. 5, 2023	Jan. 5, 2023 Order/Opinion
515 2:21-cv-00316	Plaintiff's Motion for a Stay Pending Appeal of January 5, 2023 Orders [DKT. Nos. 512 and 513]	Jan. 20, 2023	Jan. 20, 2023 Pleading / Motion / Brief
527 2:21-cv-00316	Memorandum Opinion and Order	Feb. 7, 2023	Feb. 7, 2023 Order/Opinion
50 23-01078	Order U. S. Court of Appeals for the Fourth Circuit	Feb. 22, 2023	Feb. 22, 2023 Order/Opinion

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT. Filing Fee $402.00. Receipt # CHAR019069. (Attachments: # 1 Declaration of Loree Stark, # 2 Proposed Summons as to Dora Stutler, # 3 Proposed Summons as to Harrison County Board of Education, # 4 Proposed Summons as to W. Clayton Burch, # 5 Proposed Summons as to West Virginia Secondary School Activities Commission, # 6 Proposed Summons as to West Virginia State Board of Education, # 7 Receipt, # 8 Civil Cover Sheet) (kew) 1 Declaration of Loree Stark View on RECAP 2 Proposed Summons as to Dora Stutler View on RECAP 3 Proposed Summons as to Harrison County Board of Education View on RECAP 4 Proposed Summons as to W. Clayton Burch View on RECAP 5 Proposed Summons as to West Virginia Secondary School Activities Commission View on RECAP 6 Proposed Summons as to West Virginia State Board of Education View on RECAP 7 Receipt View on RECAP 8 Civil Cover Sheet View on RECAP	May 26, 2021	May 26, 2021 Clearinghouse
2	MOTION by B. P. J., Heather Jackson for a Preliminary Injunction. (Attachments: # 1 Declarations of Joshua Safer and Heather Jackson, # 2 Proposed Order) (kew) 1 Declarations of Joshua Safer and Heather Jackson View on RECAP 2 Proposed Order View on RECAP	May 26, 2021	May 26, 2021 Clearinghouse
3	MOTION by B. P. J., Heather Jackson for Leave to File Brief in Excess of the Page Limitation with proposed document attached (Attachments: # 1 Exhibit A, # 2 Proposed Order) (kew)	May 26, 2021	May 26, 2021 PACER
4	STANDING ORDER IN RE: ASSIGNMENT AND REFERRAL OF CIVIL ACTIONS AND MATTERS TO MAGISTRATE JUDGES ENTERED JANUARY 4, 2016. Discovery referred to Magistrate Judge Tinsley. (cc: attys; any unrepresented party) (klc)	May 26, 2021	May 26, 2021 PACER
5	ELECTRONIC SUMMONS ISSUED as to W. Clayton Burch, Harrison County Board of Education, Dora Stutler, West Virginia Secondary School Activities Commission, West Virginia State Board of Education, re: 1 Complaint. Summons returnable 21 days. Instructions to Counsel: This is your electronic summons. Please print as many copies of the Summons and Complaint as are necessary to effectuate service under Fed. R. Civ. P. 4. See Proof of Service page of this Summons form for filing a return of service if required by Fed. R. Civ. P. 4(l). (Attachments: # 1 Summons Issued as to Harrison County Board of Education, # 2 Summons Issued as to W. Clayton Burch, # 3 Summons Issued as to West Virginia Secondary School Activities Commission, # 4 Summons Issued as to West Virginia State Board of Education) (kew)	May 26, 2021	May 26, 2021 PACER
	Case Assigned	May 26, 2021	May 26, 2021 PACER
	CASE assigned to Judge Joseph R. Goodwin. (klc)	May 26, 2021	May 26, 2021 PACER
6	STATEMENT OF VISITING ATTORNEY from Joshua A. Block on behalf of B. P. J., Heather Jackson. Local counsel: Loree Stark. Fee $50.00. Receipt # AWVSDC-7955402. (Stark, Loree) (Modified on 5/28/2021 to add party filer) (kew).	May 27, 2021	May 27, 2021 PACER
7	STATEMENT OF VISITING ATTORNEY from Avatara Smith-Carrington on behalf of B. P. J., Heather Jackson. Local counsel: Loree Stark. Fee $50.00. Receipt # BWVSDC-7955405. (Stark, Loree) (Modified on 5/28/2021 to add party filer) (kew).	May 27, 2021	May 27, 2021 PACER
8	STATEMENT OF VISITING ATTORNEY from Tara L. Borelli on behalf of B. P. J., Heather Jackson. Local counsel: Loree Stark. Fee $50.00. Receipt # AWVSDC-7955408. (Stark, Loree) (Modified on 5/28/2021 to add party filer) (kew).	May 27, 2021	May 27, 2021 PACER
9	STATEMENT OF VISITING ATTORNEY from Carl S. Charles on behalf of B. P. J., Heather Jackson. Local counsel: Loree Stark. Fee $50.00. Receipt # AWVSDC-7955410. (Stark, Loree) (Modified on 5/28/2021 to add party filer) (kew).	May 27, 2021	May 27, 2021 PACER
10	SUPPLEMENTAL CERTIFICATE OF SERVICE by B. P. J., Heather Jackson for Complaint. (Stark, Loree)	May 27, 2021	May 27, 2021 PACER
11	SUPPLEMENTAL CERTIFICATE OF SERVICE by B. P. J., Heather Jackson for Motion for Preliminary Injunction. (Stark, Loree)	May 27, 2021	May 27, 2021 PACER
12	SUPPLEMENTAL CERTIFICATE OF SERVICE by B. P. J., Heather Jackson for Motion to File Brief in Excess of the Page Limitation. (Stark, Loree)	May 27, 2021	May 27, 2021 PACER
13	SUMMONS RETURNED EXECUTED for West Virginia State Board of Education, re: 1 Complaint, 3 MOTION by B. P. J., Heather Jackson for Leave to File Brief in Excess of the Page Limitation, 2 MOTION by B. P. J., Heather Jackson for a Preliminary Injunction. West Virginia State Board of Education served on 5/28/2021, answer due 6/18/2021. (Stark, Loree)	June 1, 2021	June 1, 2021 PACER
14	SUMMONS RETURNED EXECUTED for W. Clayton Burch, re: 1 Complaint, 3 MOTION by B. P. J., Heather Jackson for Leave to File Brief in Excess of the Page Limitation, 2 MOTION by B. P. J., Heather Jackson for a Preliminary Injunction. W. Clayton Burch served on 5/28/2021, answer due 6/18/2021. (Stark, Loree)	June 1, 2021	June 1, 2021 PACER
15	SUMMONS RETURNED EXECUTED for Dora Stutler, re: 1 Complaint, 3 MOTION by B. P. J., Heather Jackson for Leave to File Brief in Excess of the Page Limitation, 2 MOTION by B. P. J., Heather Jackson for a Preliminary Injunction. Dora Stutler served on 5/28/2021, answer due 6/18/2021. (Stark, Loree)	June 1, 2021	June 1, 2021 PACER
16	SUMMONS RETURNED EXECUTED for West Virginia Secondary School Activities Commission, re: 1 Complaint, 3 MOTION by B. P. J., Heather Jackson for Leave to File Brief in Excess of the Page Limitation, 2 MOTION by B. P. J., Heather Jackson for a Preliminary Injunction. West Virginia Secondary School Activities Commission served on 6/1/2021, answer due 6/22/2021. (Stark, Loree)	June 1, 2021	June 1, 2021 PACER
17	SUMMONS RETURNED EXECUTED for Harrison County Board of Education, re: 1 Complaint, 3 MOTION by B. P. J., Heather Jackson for Leave to File Brief in Excess of the Page Limitation, 2 MOTION by B. P. J., Heather Jackson for a Preliminary Injunction. Harrison County Board of Education served on 6/1/2021, answer due 6/22/2021. (Stark, Loree)	June 1, 2021	June 1, 2021 PACER
18	ORDER granting 3 MOTION by B. P. J., Heather Jackson for Leave to File Brief in Excess of the Page Limitation; the Clerk is directed to docket the proposed document [ECF No. 3-1] as Plaintiffs' Memorandum in Support of Plaintiff's Motion for Preliminary Injunction. Signed by Judge Joseph R. Goodwin on 6/2/2021. (cc: counsel of record; any unrepresented party) (kew)	June 2, 2021	June 2, 2021 PACER
19	MEMORANDUM OF LAW by B. P. J., Heather Jackson in support of 2 MOTION by B. P. J., Heather Jackson for a Preliminary Injunction (docketed pursuant to #18 order) (kew)	June 2, 2021	June 2, 2021 RECAP
20	STATEMENT OF VISITING ATTORNEY from Andrew Barr on behalf of Heather Jackson, B. P. J. Local counsel: Loree Stark. Fee $50.00. Receipt # AWVSDC-7958465. (Stark, Loree)	June 3, 2021	June 3, 2021 PACER
21	STATEMENT OF VISITING ATTORNEY from Julie Veroff on behalf of Heather Jackson, B. P. J. Local counsel: Loree Stark. Fee $50.00. Receipt # AWVSDC-7958472. (Stark, Loree)	June 3, 2021	June 3, 2021 PACER
22	STATEMENT OF VISITING ATTORNEY from Kathleen Hartnett on behalf of Heather Jackson, B. P. J. Local counsel: Loree Stark. Fee $50.00. Receipt # AWVSDC-7958489. (Stark, Loree)	June 3, 2021	June 3, 2021 PACER
23	STATEMENT OF VISITING ATTORNEY from Katelyn Kang on behalf of Heather Jackson, B. P. J. Local counsel: Loree Stark. Fee $50.00. Receipt # AWVSDC-7958498. (Stark, Loree)	June 3, 2021	June 3, 2021 PACER
24	STATEMENT OF VISITING ATTORNEY from Elizabeth Reinhardt on behalf of Heather Jackson, B. P. J. Local counsel: Loree Stark. Fee $50.00. Receipt # AWVSDC-7958508. (Stark, Loree)	June 3, 2021	June 3, 2021 PACER
25	SUPPLEMENTAL DECLARATION of Katelyn Kang by B. P. J., Heather Jackson is support of 2 MOTION by B. P. J., Heather Jackson for a Preliminary Injunction. (Barr, Andrew) (Modified on 6/10/2021 to correct link and to add party filer) (kew).	June 9, 2021	June 9, 2021 PACER
26	STATEMENT OF VISITING ATTORNEY from Sruti J. Swaminathan on behalf of Heather Jackson, B. P. J.. Local counsel: Loree Stark. Fee $50.00. Receipt # AWVSDC-7964227. (Stark, Loree)	June 10, 2021	June 10, 2021 PACER
27	EXPEDITED MOTION by B. P. J., Heather Jackson for a Scheduling Order. (Stark, Loree)	June 11, 2021	June 11, 2021 PACER
28	PROPOSED ORDER Order Granting Expedited Motion for a Scheduling Order by B. P. J., Heather Jackson. (Stark, Loree)	June 11, 2021	June 11, 2021 RECAP
29	ORDER denying 27 EXPEDITED MOTION by B. P. J., Heather Jackson for a Scheduling Order; Defendants' Response to Plaintiffs' Motion for a Preliminary Injunction is due on 6/16/2021; Plaintiffs' Reply to the Response is due 6/23/2021. Signed by Judge Joseph R. Goodwin on 6/14/2021. (cc: counsel of record; any unrepresented party) (kew)	June 14, 2021	June 14, 2021 RECAP
30	NOTICE OF APPEARANCE by Kelly C. Morgan on behalf of W. Clayton Burch, West Virginia State Board of Education. (Morgan, Kelly)	June 14, 2021	June 14, 2021 PACER
31	NOTICE OF ATTORNEY APPEARANCE by Roberta F. Green on behalf of West Virginia Secondary School Activities Commission. (Green, Roberta)	June 14, 2021	June 14, 2021 PACER
32	APPEARANCE OF COUNSEL by Susan L. Deniker on behalf of Harrison County Board of Education, Dora Stutler. (Deniker, Susan)	June 15, 2021	June 15, 2021 PACER
33	DISCLOSURE STATEMENT PURSUANT TO RULE 7.1, Federal Rules of Civil Procedure, by Defendant West Virginia Secondary School Activities Commission (Green, Roberta)	June 15, 2021	June 15, 2021 PACER
34	PROOF/CERTIFICATE OF SERVICE by B. P. J., Heather Jackson for Complaint and Initial Pleadings to the Solicitor General of the Office of the West Virginia Attorney General Pursuant to FRCP 5.1(b). (Stark, Loree)	June 15, 2021	June 15, 2021 PACER
35	AMENDED PROOF/CERTIFICATE OF SERVICE by B. P. J., Heather Jackson for Complaint and Initial Pleadings to the Solicitor General of the Office of the West Virginia Attorney General Pursuant to FRCP 5.1(b). (Stark, Loree)	June 15, 2021	June 15, 2021 PACER
36	MOTION by Harrison County Board of Education, Dora Stutler, West Virginia Secondary School Activities Commission, West Virginia State Board of Education, W. Clayton Burch for Amended Schedule. (Deniker, Susan) (Modified on 6/15/2021 to add party filer) (kew).	June 15, 2021	June 15, 2021 PACER
37	DISCLOSURE STATEMENT PURSUANT TO RULE 7.1, Federal Rules of Civil Procedure, by Defendant Harrison County Board of Education (Deniker, Susan)	June 15, 2021	June 15, 2021 PACER
38	DISCLOSURE STATEMENT PURSUANT TO RULE 7.1, Federal Rules of Civil Procedure, by Defendants W. Clayton Burch, West Virginia State Board of Education (Morgan, Kelly)	June 15, 2021	June 15, 2021 PACER

Case: B. P. J. v. West Virginia State Board of Education

2:21-cv-00316 | U.S. District Court for the Southern District of West Virginia

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