Filed Date: May 26, 2021
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The state of West Virginia passed HB 3293 in April of 2021, and it was set to go into effect on July 8, 2021, before the start of the 2021-22 school year. HB 3293 mandated that all athletic teams or sports sponsored by any public schools in West Virginia are to be designated as either male or female on the basis of biological sex alone, and further dictated that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection of such teams is based upon competitive skill or the activity involved is a contact sport.” There was no parallel provision in HB 3293 for boys’ teams.
In response to the passage of HB 3293, on May 26, 2021, an eleven-year-old transgender girl who wanted to try out for the girls’ cross-country and track teams in her Harrison County middle school, by and through her mother, filed this lawsuit in the United States District Court for the Southern District of West Virginia. Represented by the ACLU, Lambda Legal, and private counsel, the plaintiff brought her lawsuit against the West Virginia State Board of Education (WVBOE), Harrison County Board of Education (HCBOE), West Virginia Secondary School Activities Commission (WVSSAC), the West Virginia State Superintendent, and the Harrison County Superintendent. She alleged that HB 3293 deprived her daughter of equal protection under the Fourteenth Amendment and Title IX, and sought declaratory relief, attorneys’ fees, and preliminary and permanent injunctive relief enjoining defendants from enforcing HB 3293. This case was assigned to district judge Joseph R. Goodwin and magistrate judge Dwane Tinsley.
Contemporaneously with her complaint, plaintiff also filed a motion for preliminary injunction, asking that the court enjoin defendants from enforcing any aspect of HB 3293 that would prevent her daughter from participating in her school’s girls’ cross-country and track teams. In a supporting memorandum filed on June 2, 2021, the plaintiff argued that because HB 3293 explicitly targets transgender people—and specifically transgender girls—the court must apply heightened scrutiny. The plaintiff argued that HB 3293 cannot survive strict scrutiny because it did not serve defendants’ purported justification of protecting girls’ opportunities in sports. The plaintiff also argued that without a preliminary injunction, her duaghter would suffer irreparable harm because (1) her constitutional rights would be violated, (2) she would miss out on participating in middle school sports, an opportunity which she could not get back, and (3) she would be subject to West Virginia’s communication of its moral disapproval of her identity, which the constitution prohibits.
On June 17, 2021, the state of West Virginia filed a motion to intervene in this case, asking the court to admit the state as a party so West Virginia could defend the constitutionality of HB 3293. The court granted the motion to intervene the next day. Also on June 17, 2021, the United States filed a statement of interest in the case arguing that the Fourteenth Amendment and Title IX do not permit West Virginia to categorically exclude transgender girls from participating in single-sex sports restricted to girls.
All five defendants in this case filed their motions to dismiss on the first two days of July. The WVBOE and the state superintendent argued that the claims against them should be dismissed because the plaintiff lacked standing against them, since the WVBOE and state superintendent had not yet written or implemented specific rules to enforce HB 3293. They also argued that the claims against the state superintendent and WVBOE were duplicative, and as such, the court should at least dismiss the claims against the state superintendent. The WVSSAC similarly argued that the claims against them should be dismissed because WVSSAC had taken no action, nor been called upon to take any action, to enforce HB 3293, and because of this WVSSAC could not provide the relief that the plaintiff sought. Finally, the HCBOE and Harrison County Superintendent argued that the claims against them should be dismissed because the county was only following state law, and as such could not provide plaintiff with the relief she sought. All defendants, along with the intervening state of West Virginia, argued that HB 3293 does not violate Title IX or the Equal Protections clause because it treats all people equally, according to their biological sex.
On July 16, 2021, the plaintiff filed an amended complaint, which incorporated the attorney general of West Virginia and the state of West Virginia as additional defendants.
The court granted plaintiff’s motion for preliminary injunction on July 21, 2021. 550 F.Supp.3d 347. Finding that HB 3293 indisputably discriminates based on transgender status, the court applied heightened scrutiny. The judge expressed skepticism that the state’s proffered interest in protecting girls’ participation in sports was genuine, but even assuming it was, the judge nevertheless found that HB 3293 was not substantially related to said objective. The court found that the plaintiff had offered sufficient evidence that due to puberty blockers, her daughter would have no inherent physical advantage over the cisgender girls on the middle school sports teams, nor could she possibly pose any danger to other girls because cross-country and track are not contact sports. Furthermore, transgender people made up a very small percent of the population—and the plaintiff’s daughter was the only transgender girl in her class—so permitting her to participate on the sports teams could not take away opportunities of other girls. Given these facts, the court found that HB 3293 impermissibly treated the plaintiff’s daughter worse that similarly situated cisgender girls, and therefore likely violated the Fourteenth Amendment and Title IX. Finally, the court also found that without a preliminary injunction, the plaintiff’s daughter would be irreparably harmed because her constitutional rights would be violated, and she would face unnecessary distress and stigma. For these reasons, the court granted preliminary injunction, enjoining defendants from enforcing HB 3293 against plaintiffs’ daughter and requiring that they allow her to participate in the girls’ cross-county and track teams at her school.
A week later, on July 28, 2021, the court denied defendants’ motions to dismiss as moot, permitting them to re-file motions to dismiss that were responsive to plaintiff’s amended complaint. On July 30, 2021, defendants refiled their motions to dismiss, largely making the same arguments that they offered in their prior motions to dismiss. The attorney general of West Virginia, similar to other defendants, argued that he should be dismissed as a defendant because he had little to no control over the enforcement of HB 3293, and as such could not provide the relief that plaintiff sought. The state defendant of West Virginia did not file a motion to dismiss, instead filing an answer to the plaintiff’s amended complaint. In their answer, West Virginia claimed several affirmative defenses, including that plaintiff lacked standing, that her claims were unripe, that the state was entitled to sovereign immunity under the Eleventh Amendment, and that plaintiff’s claims were contrary to the sovereign interests of the state under the Tenth Amendment. The state of West Virginia also requested a trial by jury.
The plaintiff filed her opposition to defendants’ motions to dismiss on August 13, 2021, and filed a motion to strike the jury demand in West Virginia’s answer to her amended complaint. The plaintiff argued that because she requested only equitable relief through declaratory and injunctive relief, and no damages, defendants were not entitled to a jury trial. On the other hand, West Virginia argued that they were constitutionally entitled to a jury trial under the Seventh Amendment because it was settled law that a party is entitled to a jury to resolve Fourteenth Amendment claims, and Title IX claims similarly had been decided by juries in practice.
The same day, the plaintiff and the Attorney General of West Virginia filed a joint motion to dismiss the Attorney General as a defendant from the case.
On September 10, 2021, a cisgender woman on the women’s soccer team at West Virginia State University filed a motion to intervene in the case. She argued that as a college athlete, she had a significant interest that could be affected by this case; that she would not burden or prejudice the plaintiff in the case; and that she would put forward arguments distinct from those offered by the named defendants. The plaintiff opposed her motion to intervene, but the court granted her motion on December 1, 2021. The court specifically found that she sought to defend HB 3923 as a member of the class of people for whom the law was purportedly written, and as such she would “add a perspective not represented by any of the current defendants.” The court similarly agreed with the intervenor college athlete that her intervention in the case would not prejudice or burden the proceedings, and that she would offer arguments distinct from those offered by the defendants.
On December 1, 2021, the court entered several opinions ruling on defendants’ motions to dismiss. First, the court granted parties’ joint motion to dismiss the Attorney General of West Virginia from the case, and denied the Attorney’s General motion to dismiss as moot. The court then denied the remaining defendants’ motions to dismiss. The court found that the plaintiff had sufficiently shown that each defendant, acting under the color of state law, had discriminated against her on the basis of sex. The court also found specifically that discrimination based on transgender status is necessarily discrimination based on sex, citing to Grimm v. Gloucester from the Fourth Circuit, and Bostock v. Clayton from the United States Supreme Court.
The court then granted plaintiff’s motion to strike defendants’ jury demand on March 30, 2022. The court agreed with the plaintiff, finding that actions for declaratory relief, injunctive relief, and nominal damages do not trigger the right to a jury trial. However, the court also reserved the right to empanel and advisory jury.
On April 21, 2022, all parties filed cross motions for summary judgment. The WVBOE, HCBOE, WVSSAC, West Virginia State Superintendent, and Harrison County Superintendent all essentially repeated the same arguments from their motions to dismiss. The state of West Virginia contended that the court should grant them summary judgment because HB 3293 treats all biological males—and all biological females—the same, regardless of their gender identity. In other words, all biological boys, regardless of whether they identify as boys or girls, are precluded under HB 3293 from participating in girls’ sports. Because there is no disparate treatment based on transgender status, the state argues, HB 3293 does not trigger heightened scrutiny. Furthermore, even if the court applies heightened scrutiny, the state’s interest in protecting women’s and girls’ safety and opportunities in sports justifies the sex-based classifications made in HB 3293. For this reason, plaintiff’s facial challenge to HB 3293 fails, and her as-applied challenge also fails because the plaintiff’s daughter, although unable to beat all biological girls in field and track, did beat and thereby displace some of them. West Virginia further argued that plaintiff’s Title IX claim failed because “sex” under Title IX means biological sex, and HB 3293 protects biological women in sports. In her separate motion for summary judgment, the intervenor college athlete repeated many of the state’s arguments, emphasizing that Title IX deals with sex, not gender identity.
The plaintiff filed her motion for summary judgment on the same day, in large part repeating her arguments from her motion for preliminary injunction.
While the parties’ motions for summary judgment were pending before the court, on May 12, 2022, the parties also filed a series of contentious motions to exclude certain evidence. Most notably, the state of West Virginia and the intervenor college athlete moved to exclude testimony from doctors providing evidence that pre-pubescent transgender girls taking hormone blockers have no inherent advantage over cisgender girls in sports. On the other hand, the plaintiff moved to exclude expert testimony from doctors providing evidence that allowing transgender women to compete in women’s sports, regardless of the transgender woman’s level of testosterone, places the safety and competitiveness of women athletes in greater risk. Each party argued that the opposing side’s experts either lacked the required expertise or employed unsound methodology.
On May 26, 2022, the plaintiff moved for the court to reconsider their admission of the intervenor college athlete in this case. The plaintiff argued that the intervenor college athlete had in practice disproven the considerations under which the court admitted her. First, although the court admitted her because she represented the class of people that HB 3293 was purportedly written for—cisgender female athletes—the intervenor college athlete had since graduated from West Virginia State University and moved to Florida. Second, the court admitted her in part based on her insistence that she would present arguments distinct from those offered by the named defendants. However, she had not offered on the record any of the arguments she insisted that she would provide when she first moved to intervene in this case. Finally, although the court admitted her under the presumption that she would not prejudice or burden the plaintiff, her conduct during discovery prejudiced the plaintiff. The plaintiff had to respond to respond to separate but often overlapping sets of discovery requests and briefs, and the intervenor college athlete did not timely disclose her graduation and plans to move to the plaintiff.
The court decided all motions pending before it on January 5, 2023, in a memorandum opinion order denying WVSSAC’s motion for summary judgment, granting defendants’ and intervenor college athlete’s motions for summary judgment, and denying plaintiff’s motion for summary judgment. 649 F.Supp.3d 220. In the court’s opinion, the judge first denied WVSSAC’s motion for summary judgment. The WVSSAC had argued that they were not a state actor, and as such could not have violated the Fourteenth Amendment or Title IX. The court rejected this argument, finding that WVSSAC is pervasively entwined with the state because it could not exist without the state, and the state could not manage statewide secondary schools without it. The judge then turned to the competing arguments presented by the plaintiff versus those presented by the remaining defendants and the intervenor college student. Applying heightened scrutiny, the court held that the West Virginia “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.” Therefore, on the Equal Protection claim, the court found in favor of the defendants. Regarding plaintiff’s Title IX claim, the court found that HB 3293 largely mirrors Title IX by separating school sports based on biological sex, and as such the law could not be in violation of Title IX. Although the judge acknowledged that hormone blockers could equal the competitive playing field in girls’ sports between cisgender and transgender girls, he also stated that not all transgender girls take such hormone blockers, and he therefore found in favor of the defendants on both claims and upheld the legality of HB 3293. Having found in favor of defendants, the court dismissed all other pending motions as moot, and lifted the preliminary stay, allowing HB 3293 to go into effect. The court then directed the clerk to dismiss the case.
On January 20, 2023, the plaintiff indicated to the district court her intent to appeal the court’s summary judgment order, and filed a motion to stay the court’s order pending appeal. The plaintiff appealed the court’s summary judgment order to the United States Circuit Court for the Fourth Circuit on January 24, 2023 (23-1078). The WVSSAC also appealed the district court’s summary judgment order on February 6, 2023 (23-1130). The Fourt Circuit filed an order consolidating both appeals on the same day.
After considering plaintiff’s motion to stay pending appeal and defendants’ oppositions, on February 7, 2023, the district court denied plaintiff’s motion. 2023 WL 1805883. The district court acknowledged that the enforcement of HB 3293 would irreparably harm the plaintiff’s daughter by denying her the opportunity to participate in her school’s girls’ sports teams, and that her participation in those sports teams was unlikely to harm anyone else. However, the court ultimately ruled against her motion because it found that she was unlikely to succeed on appeal for the same reasons laid out in the court’s summary judgment order.
The same day, on February 7, 2023, the plaintiff filed a motion for stay pending appeal in the Fourth Circuit, asking that the Fourth Circuit stay the district court’s summary judgment order and allow the preliminary injunction to stay in place pending the appeal. After considering plaintiff’s motion and defendants’ opposing briefs, the Fourt Circuit granted plaintiff’s motion on February 22, 2023. 2023 WL 2803113. The Fourth Circuit did not explain their reasoning in the one-page order but ruled in the plaintiff’s favor in a two to one decision, with Judges Pamela Ann Harris and Toby Jay Heytens issuing the order and Judge George Steven Agee dissenting. Following the Fourth Circuit’s order, the case proceeded with the preliminary injunction still in place, prohibited defendants from enforcing HB 3293 and allowing the plaintiff’s daughter to continue to participate on the girls’ sports teams at her school.
On April 3, 2023, there were seven amicus briefs filed in the Fourth Circuit in support of the plaintiff and a permanent injunction prohibiting the enforcement of HB 3293 in West Virginia. The amici filing these briefs included the United States; Seventeen states and the District of Columbia; The American Academy of Pediatrics, the American Medical Association, and four additional leading medical, mental health, and other health care organizations “represent[ing] hundreds of thousands of physicians and mental-health professionals, including specialists in family medicine, internal medicine, pediatrics, women’s health, endocrinology, and transgender health”; Thirty-five “current and former individual athletes in international, Olympic, and professional women’s sports, and non-profit organizations including National Women’s Soccer League Players Association, the Women’s Sports Foundation, and Athlete Ally”; Eight transgender women athletes “who have had life-changing opportunities through participating in a range of different levels of sports around the country; the Trevor Project; and the National Women’s Law Center and “51 additional organizations committed to gender justice, including the rights of lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI) individuals, and to protecting women and girls from discrimination, including women and girls of color from discrimination on the basis of race and sex.”
Between May 2 and May 4, 2023, there were approximately eleven amicus briefs filed in support of defendants and the upholding of HB 3293. The amici filing these briefs included seventeen states; Thomas More Society, National Association of Evangelicals; Concerned Women for America and Samaritan’s Purse; Institute for Faith and Family; Twenty-five athletic officials and coaches of female athletes; Five female Olympic rowers; Twenty-two business executives; International Consortium on Female Sport; Seventy-eight female athletes, coaches, sports officials, and parents of female athletes; Public Advocate of the United States, America’s Future, U.S. Constitutional Rights Legal Defense Fund, One Nation Under God Foundation, Fitzgerald Griffin Foundation, and Conservative Legal Defense and Education Fund; Parents Defending Education; and Independent Women’s Law Center.
Amid the amici curae filing their briefs, on March 9, 2023. defendants and the intervenor college athlete filed an application with the United States Supreme Court, asking that the court vacate the injunction entered by the Fourth Circuit pending appeal (22A800). On April 6, 2023, the United States Supreme Court denied their application without writing an opinion, and with Justice Thomas and Alito dissenting. 143 S.Ct. 889.
On July 11, 2023, the state of West Virginia and the intervenor college athlete then filed a motion asking the Fourth Circuit to suspend the injunction pending appeal. They specifically argued that despite plaintiff’s assurances to the contrary, her daughter was performing ahead of her cisgender girls on her middle school sports teams, thereby competitively displacing these cisgender girls and rendering the injunction detrimental to the public interest. Because the 2023-24 school year and school sports seasons were about to start, West Virginia and intervenor college athlete asked the Fourth Circuit to enjoin the plaintiff’s daughter from participating in her school’s girls’ sports teams. In her opposition, the plaintiff argued that her daughter, while having improved due to hard work and practice, still performed behind many cisgender teammates. On August 4, 2023, the Fourt Circuit—again in a two-to-one split decision—denied West Virginia and the intervenor college athlete’s motion. The majority found that the motion at issue impermissibly attempted to relitigate issues that had already been submitted and litigated, and that West Virginia and the intervenor college athlete failed to meet their burden of showing a “significant change in either factual conditions or the law” that would warrant a suspension of injunction pending appeal.
The Fourth Circuit heard oral argument on October 27, 2023. As of November 28, 2023, the Fourth Circuit has not yet issued an opinion regarding plaintiff’s appeal.
Sarah Portwood (11/28/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/59937829/parties/b-p-j-v-west-virginia-state-board-of-education/
Bandy, Kimberly M. (West Virginia)
Attorney, Bonnie Ilene (- United States (national) -)
Baldi, Maxwell A. (- United States (national) -)
Barday, Shireen A. (- United States (national) -)
Barham, Travis Christopher (West Virginia)
Goodwin, Joseph Robert (West Virginia)
Last updated Nov. 24, 2023, 9:13 a.m.
State / Territory: West Virginia
Filing Date: May 26, 2021
Case Ongoing: Yes
An eleven-year-old transgender girl attending a public school in West Virginia, by and through her mother.
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Prevailing Party: None Yet / None
Nature of Relief:
Source of Relief:
Content of Injunction:
Affected Sex or Gender:
Type of Facility: