In early April 2023, wrote about efforts in West Virginia to keep high school boys who self-identified as girls out of female sports, A District Court Judge had denied an injunction against the law in a suit brought by “B.J.P.” (a male athlete who wanted to complete in girls’ sports), but the 4th Circuit Court of Appeals without explanation issued an injunction halting the law.
The U.S. Supreme Court Declined Emergency Request To Reinstate West Virginia “Save Women’s Sports Act”.
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 (emphasis added):
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.
There has been a new development. A female athlete, Lainey Armistead (represented by Alliance Defending Freedom), joined by the Attorney General of West Virginia, has filed an emergency Motion to Suspend The Injunction Pending Appeal, asserting there is new evidence of the harm the injunction is causing (emphasis added):
Recognizing the biological differences between male and female athletes, the West Virginia Legislature passed H.B. 3293 to preserve fairness and competitiveness in certain school sports. Like many laws, the Act made some trade-offs—but it ultimately represented, in the Legislature’s careful judgment, the best outcome for all young competitors in the State. After extensive discovery and extended analysis, a once-reluctant district court concluded, too, that the law appropriately and constitutionally advanced meaningful state objectives. A few months ago, this Court thought differently and enjoined the State from enforcing the Act against the plaintiff here. Although the Court did not explain its reasoning at the time, it evidently agreed with B.P.J.’s argument that an injunction pending appeal would not hurt anyone. Time has now shown otherwise.Over the past spring track season, B.P.J. has pushed more and more biologically female athletes aside. B.P.J.’s athletic skills have markedly improved. By the State’s count, B.P.J. displaced over 100 different girls in competitive rankings this spring track-and-field season. Worse, B.P.J. denied two girls the chance to compete in conference championships. The displaced girls will never be able to recover those opportunities. This broad displacement contradicts what B.P.J. told the Court a few months ago—that not one “single person” would be harmed by enjoining this validly enacted State law, ECF 49, at 1. We now know that dozens of young student-athletes have already been harmed. The only way to look past the harm that this Court’s injunction has caused is to dismiss the displaced athletes’ interest in competing on a sports team in a fair competition. But that interest, of course, is the very same sort of interest that B.P.J. said justified the injunction pending appeal in the first place. So no matter how one approaches this issue, the outcome is plain: The present injunction should not stand. The Court should instead vacate the injunction pending appeal to avoid harming more girls in the upcoming crosscountry season.
The papers details the statistics showing B.J.P.’s participation is pushing girls aside and depriving them of one-in-a-lifetime opportunities, and the the balancing of the equities (required for an injunction) has changed since B.J.P. first argued to the court that no females would be harmed:
… B.P.J. has incorrectly insisted that not one single person has been impacted by B.P.J.’s involvement. See ECF 49, at 1. But without belaboring the point, that’s no longer true. B.P.J. has displaced over 100 different girls over 280 times and deprived a girl of a top-10 finish in most of the events in which B.P.J. has competed since the injunction. And B.P.J. is now denying female athletes competition opportunities by pushing them out of two events at both the conference championships and the statewide, seasonending meet. When males displace females “even to the extent of one player … the goal of equal participation by females in interscholastic athletics is set back, not advanced.” Clark ex rel. Clark v. Ariz. Interscholastic Ass’n, 886 USCA4 Appeal: 23-1078 Doc: 142-1 Filed: 07/11/2023 Pg: 23 of 29Total Pages:(23 of 72)18 F.2d 1191, 1193 (9th Cir. 1989). Female competitors will forever lose the chance to compete and win in these middle-school years while this injunction remains in place.
Accorging to the PACER court docket, the court has given B.J.P. until July 19 to respond to the motion.
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