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SCOTUS Declines Emergency Request To Reinstate West Virginia “Save Women’s Sports Act”

SCOTUS Declines Emergency Request To Reinstate West Virginia “Save Women’s Sports Act”

Alliance Defending Freedom: “Sports underscore the inherent biological differences between the sexes. When society and the law try to ignore reality, people get hurt. In sports, it’s women and girls who pay the price.”

West Virginia passed a law barring boys from competing in girls’ sports. A District Court judge upheld the law.

The 4th Circuit, without explanation, issued an injunction against the law. West Virginia sought an emergency order (docket) from the U.S. Supreme Court staying the injunction (i.e. allowing the law to remain in force) pending litigation of the merits of the case:

Roughly two years ago, the West Virginia Legislature passed H.B. 3293—the Sports Act—to ensure equal opportunities and fair play for all student athletes. In recent years biological males identifying as female have increasingly competed against and beaten biological females in women’s sports events across the country. High-school-girl sprinters in Connecticut, young women swimming in the Ivy League, teen volleyball players in Hawaii, young female runners in Alaska, and student athletes everywhere in between have found themselves falling behind or pushed aside for biologically male athletes. So echoing language from Title IX’s implementing regulations, 34 C.F.R. § 106.41(b), the Sports Act reiterated that women’s and girls’ sports teams based on “competitive skill” or “involv[ing] a contact sport” should not be open to males, W. VA. CODE § 18-2-25d(c)(2). Instead, male students remain free to play on male or co-ed teams, while female students can play on all teams. Id. § 18-2-25d(c)(3). The Sports Act then drew an administrable line, defining “male” and “female” by looking to the student’s “reproductive biology and genetics at birth.” Id. § 18-2-25d(b).

Respondent B.P.J. sued to enjoin the Sports Act’s enforcement, arguing that the law violates both the Equal Protection Clause and Title IX of the Education Amendments of 1972 because it defines “male” and “female” through biology. The district court was no early fan of the law—it granted B.P.J.’s request for a preliminary injunction and denied multiple motions to dismiss the complaint. Appendix to Applicants’ App. to Vacate Inj. Pending Appeal (App.) 14a, 34a-48a. But then it made a 180-degree turn. After months of discovery that resulted in over 525 docket entries with 3,000 pages of testimony and expert reports, the court reviewed “all the evidence in the record, including B.P.J.’s telling responses to requests for admission.” App. 28a (emphasis added). And it then held that the Sports Act complies with both the Constitution and Title IX, dissolving the preliminary injunction and entering summary judgment for the defendants in a 23-page opinion. …

Yet in a terse, clerk-entered order, a divided panel of the Fourth Circuit undid the district court’s careful work. Only five days after expedited briefing closed, two judges granted an injunction pending appeal; one judge dissented. The majority did not provide any legal or factual reasoning for its decision. Nor did it question the district court’s analysis or record review. Instead, it gave a one-sentence notice of the grant and entered an injunction on appeal. App. 1a-2a. That unreasoned order unjustifiably upsets the way that things traditionally work in school sports. For as long as schools have offered sports teams, it has been the “norm” to designate student athletes to them by sex…..

Five SCOTUS votes would be needed to vacate the injunction. We don’t know how many votes West Virginia got, but we know it didn’t get five because the Supreme Court denied the request, for reasons not explained. So neither the 4th Circuit nor SCOTUS explained why the reasoning of the District Court was wrong, or why preserving the age-old practice of separating girls and boys for sports was not a legitimate legislative action.

Justice Alito, joined by Justice Thomas, issued a dissenting opinion which sheds some light on why the request was denied – West Virginia waited too long.

From the Dissent (emphasis added):

This application concerns an important issue that this Court is likely to be required to address in the near future, namely, whether either Title IX of the Education Amendments of 1972, 86 Stat. 373, 20 U. S. C. §1681 et seq., or the Fourteenth Amendment’s Equal Protection Clause prohibits a State from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics. The West Virginia Legislature enacted such a law. The District Court here preliminarily enjoined the law’s enforcement in July 2021, and the State did not appeal that injunction for the almost-18 months during which it was in effect. Ultimately, however, the District Court granted summary judgment for the State and dissolved the preliminary injunction. Respondent B. P. J. appealed, and a divided panel of the Fourth Circuit issued an order enjoining enforcement of the law against B. P. J. for the duration of the appeal. In doing so, the panel provided no explanation whatsoever for its decision.

West Virginia has asked this Court to stay or vacate that order, but this Court now denies that request. And like the Fourth Circuit, this Court has not explained its reasons for that decision. I would grant the State’s application. Among other things, enforcement of the law at issue should not be forbidden by the federal courts without any explanation. It is true that West Virginia allowed the District Court’s injunction to go unchallenged for nearly 18 months before seeking emergency relief from a second, identical injunction. And it is a wise rule in general that a litigant whose claim of urgency is belied by its own conduct should not expect discretionary emergency relief from a court. But in the circumstances present here—where a divided panel of a lower court has enjoined a duly enacted state law on an important subject without a word of explanation, notwithstanding that the District Court granted summary judgment to the State based on a fact-intensive record—the State is entitled to relief. If we put aside the issue of the State’s delay in seeking emergency relief and if the District Court’s analysis of the merits of this case is correct, the generally applicable stay factors plainly justify granting West Virginia’s application.

For these reasons, I respectfully dissent.

Christiana Kiefer, Senior Counsel at Alliance Defending Freedom, issued the following statement:

“Today’s decision didn’t end this case. While we hoped the Supreme Court would lift the injunction that the 4th Circuit imposed—with no explanation—on West Virginia’s women’s sports law, we remain committed to protecting female athletes by continuing to litigate this case in the court of appeals, and across the country through other lawsuits defending women’s sports. Every woman deserves the respect and dignity that comes with having an equal opportunity to excel and win in athletics. Sports underscore the inherent biological differences between the sexes. When society and the law try to ignore reality, people get hurt. In sports, it’s women and girls who pay the price. Thankfully, a growing number of states are stepping up to protect women’s athletics. Right now, 20 states have enacted laws that protect women and girls from having to compete against males, and polls show that a majority of Americans agree that the competition is no longer fair when males are permitted to compete in women’s sports.”

In the case, B.P.J. v. West Virginia State Board of Education, ADF attorneys represent Lainey Armistead, a former West Virginia State University soccer player who intervened in the lawsuit to defend the state’s law, which was enacted to ensure equal athletic opportunities for women.

In January, a federal district court upheld West Virginia’s law, but then the plaintiff, a male athlete, asked the 4th Circuit to halt enforcement of the law during the appeal so the athlete could try out for a girls’ track team in the spring. Days later, the 4th Circuit granted the request without providing any legal or factual basis for its decision—only stating that the injunction was granted. Attorneys with ADF and the West Virginia attorney general’s office then filed a motion asking the Supreme Court to vacate the 4th Circuit’s decision and allow West Virginia’s law to take full effect. While the Supreme Court declined to do so, it did not rule on the merits of the case, which continues in the court of appeals.

Featured Image: Intervenor Lainey Armistead (via ADF)


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Cowards. Too scared to issue a ruling so they hide behind the technicality of ‘aw shucks they just waited too long’.

The 4th Circuit sees itself in a contest with the 9th Circuit to be the wokest. It carries the left’s water left at every opportunity. The RINO NC Senators, like Burr and Tillis, are simply not much different from WV’s Sen. Manchin. At least Manchin doesn’t try to hide his leftist side.

I haven’t read the record, but it seems to me the WV law created an unnecessary equal protection problem by restricting males from playing on female teams, but allowing females to play on male teams. Why not disallow both? The number of females who even want to play on male teams is probably very small, and I don’t see that they have a fundamental right at stake here.

    gonzotx in reply to artichoke. | April 6, 2023 at 7:02 pm

    My daughter played football in 7th and 8th grade, was a starter for 2 yrs and they went undefeated

    I never thought about boys playing girls sports because they could participate in all sports, girls didn’t have a football team

    She went on to win a scholarship in a D1 school for basketball

    We thought it was great she was able not only to play but won a starting position. Her coach actually changed her position the last game so she could score a TD.

    You know, it was all done in joy

    But if I knew it had anything to do with this trans crap, I wouldn’t have let her do it.

    buck61 in reply to artichoke. | April 6, 2023 at 10:03 pm

    females have been allowed to compete on boys teams if females do not offer the same sport. Just a few weeks ago a female from Brown played in an NCAA baseball game.

    mailman in reply to artichoke. | April 7, 2023 at 3:55 am

    Back on the day we had a girl on our senior men’s cricket team. She was pretty handy with the ball and played in our league because there was no equivalent women’s competition for her.

    She had no delusion about being a man and she played purely because it helped with her to improve her over all game (which eventually lead on to women’s national honours for her).

    That is a big difference to a man, thinking he’s a girl, and then dominating his sport and depriving girls of podium spots and future national and potentially international honours.

    No, because the law says something about “If there’s no equivalent female sport offered.”

It sounds like the only answer is a passive protest, if there’s a boy pretending to be a girl

    Ironclaw in reply to Ironclaw. | April 6, 2023 at 7:22 pm

    On the other team then simply forfeit and don’t let the game happen. And make it known that that’s why you forfeited.

      Olinser in reply to Ironclaw. | April 6, 2023 at 9:11 pm

      Some teams are doing that and now they’re trying to penalize teams for forfeiting.

        henrybowman in reply to Olinser. | April 6, 2023 at 9:57 pm

        And on that note…

        A couple weeks ago, we read the story about the little Christian school in Vermont that got banned from participating in all sports in the state, because they forfeited a girls’ basketball game against a team with a biological male on it.

        If you’d like to show your support for them in a tangible way, they are offering school booster T-shirts and related clothing merch on their website.

        (And I didn’t realize this was a time-limited offer — I clicked on the link for verification and found out to my shock there are “only two hours left.” I don’t think it’s advertising puffery. Hope a lot of people read this in the next two hours.)

          Concise in reply to henrybowman. | April 7, 2023 at 10:05 am

          They didn’t do it right. They just withdrew from the tournament. The only way is to go, stand there and do nothing. Get pictures, publicity. Otherwise the impact is lost. There was a reason authorities prevented (or seized?) pictures of Clinton’s tarmac meeting with Loretta Lynch.

          henrybowman in reply to henrybowman. | April 7, 2023 at 8:23 pm

          Maybe they did it wrong… but at least they did it, which other schools aren’t even doing.

        Ironclaw in reply to Olinser. | April 6, 2023 at 11:03 pm

        That’s why more people need to do it.

      4fun in reply to Ironclaw. | April 6, 2023 at 10:27 pm

      Or better yet, play avoidance. When the play starts avoid the other teams players. Let them make ridiculously easy scores. If necessary when the play starts just sit down, like you’re on a bus.
      Take away any effort to even try and stop them. Hollow victories will ensure there is no satisfaction for the tranny’s.

Cowards, they are going to side with the mentality I’ll and their fantasy. If I decide I’m Emperor Napoleon hope everyone plays along with my wishes.

    henrybowman in reply to Skip. | April 6, 2023 at 10:11 pm

    It worked for the Emperor Norton in California.
    Californians were insane long before the rest of us.

    GWB in reply to Skip. | April 7, 2023 at 10:37 am

    I will. I’m bringing cannons to your house and playing 1812 Overture with them.
    I identify as Tchaikovsky.

There is another solution. Every girl should refuse to participate in events where boys are allowed to compete. Don’t just quit, go to the event, but just stand in protest, don’t race or play. Keep doing it until they’re embarrassed into making a change.

    henrybowman in reply to Concise. | April 6, 2023 at 10:14 pm

    I have yet to hear of any incident where women players organized themselves to do that. There have been very few such forfeits, and every one I know of has been pre-sanctioned by some authority at their school. The women seem to be desperate not to go off script.

      mailman in reply to henrybowman. | April 7, 2023 at 4:00 am

      Many of them seem to be in an awful hurry to make themselves irrelevant.

      Concise in reply to henrybowman. | April 7, 2023 at 10:01 am

      It will only take one courageous girl or team to motivate others.

      Frankee in reply to henrybowman. | April 7, 2023 at 5:32 pm

      Either you arent up to date or the media sources you rely on arent covering this issue (are you really surprised?). Women are pushing back strongly.

      For one thing, the female athletes in college would lose their scholarships. Riley Gaines has spoken frequently and just got punched twice by a man in a dress most like.y taking hormone injections. Posey Parker nearly got killed in Auckland. Navratolovna got cancelled. JK Rowling routinely gets death threats and cancelled. I personally have attended several Title IX demonstrations, with “rent a mob” type counter demonstrators.

      This is progressive showmanship by male CEOs, governing boards of sports, etc. And there is a shocking amount of suppressed misogyny by older men who seem to harbor resentment towards so-called “feminazis”. As a conservative business woman, that part has been particularly discouraging to me. All most women want is a fair shake….

        henrybowman in reply to Frankee. | April 7, 2023 at 8:32 pm

        Yeah, a few women are pushing back strongly, and god bless ’em. But not enough, and not in the right age groups. This should be coming mainly from high school and college athletes. Middle aged authors and businesswomen and such are nice and all, but they are not where the action is in this particular game.

        They’re fearful of losing their scholarships. Courage doesn’t mean you’re not afraid, it means you do the right thing even though you’re afraid. “Our lives, our fortunes, and our sacred honor.” I don’t see scholarships in there.

        The biggest impediments to courageous action is what they can do to your family and the people you love. Old people have to worry about descendants, young people about ancestors. The young still have the edge.

    MarkS in reply to Concise. | April 7, 2023 at 9:16 am

    nice idea, but in practice the objecting girls would be thrown off of the team and sent for a psychiatric examination

It seems that nothing happens in this country until money talks. I suspect that a few permanent injuries by males to females in a contact sport or rapes in locker rooms that cost $10+ million each might be motivators. My guess is that the jury pool for such civil cases would be rather like Trump’s will be in Manhattan.

The courts aren’t going to save us. Elections won’t save us. I’m getting more AnCap by the day.

SCOTUS has been cowed by a few protesters outside their houses

I have yet to see anyone suggest what to me seems to be the obvious solution:

Completely eliminate separate girls and boys sports. Make all sports co-ed. We have a basketball team. Period. Anyone who’s good enough to play can make the team.

Feminists have been insisting for decades that women are just as capable as men in all roles. Time to put up or shut up.

    Completely agree. In fact, I was wishing for this for decades before the trans nonsense started. It would be good for society on so many levels. Great reality therapy. And women would dominate in many areas of gymnastics.

      daniel_ream in reply to Anne. | April 7, 2023 at 10:52 am

      Not in any form that requires real athleticism. Prancing around with a ribbon, maybe, because that’s really more about looking good in tights. Any other gymnastics form the men dominate.

      henrybowman in reply to Anne. | April 7, 2023 at 8:36 pm

      Ask people to name famous ballet stars. You’re likely to get more males than females. The males gain superstardom, the female hopefuls flock on and off stage over the years like livestock.

Once again the U.S. of Pedophilia is triumphant. Got to groom those kids for the bathhouse delights. I guess Queer Sports goes together with Bud’s Queer Beer. We’re giving Weimar a good rep. What a disgusting country the USA has become. Thank God I and my family got out.

When trans activists sue to require trans men to register for the draft or face the same penalties men do, I might believe they mean what they say.

So it’s rigged?

Assuming WV’s appeal was made within the prescribed timeframe why does the delay matter?