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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