Bonkers Fourth Circuit Ruling Against West Virginia Law Would Ban Women’s and Girls’ Sports

Yesterday a divided panel of the Fourth Circuit ruled (in B.P.J. v. West Virginia State Board of Education) that a West Virginia law that provides that girls’ sports teams “shall not be open to students of the male sex” violates the landmark federal law known as Title IX. Under the panel majority’s illogic, Title IX, which (in the words of a feminist law professor, quoted in the dissent) “precipitated a virtual revolution for girls and women in sports,” in fact outlaws the sex-segregated sports teams for women and girls that made that revolution possible.

The majority’s ruling rests on a simple and ludicrous error, and the Supreme Court should overturn it promptly.

Some brief background: The plaintiff in the case, B.P.J., is a 13-year-old boy who identifies as female (a “transgender girl,” in transgender lingo) and who wants to take part in his school’s girls’ teams for cross-country and track. B.J.P. does not contend that it is unlawful for schools to have separate girls’ teams: “B.J.P has disavowed any challenge to sex separation in sports.” (Slip op. at 18 (cleaned up).) He instead argues that his exclusion from those teams violates the Equal Protection Clause and Title IX.

1. Let’s start with the majority’s elementary error. In a key passage that is an essential predicate for both its Equal Protection analysis and its Title IX holding, the majority states:

The defendants also insist the Act does not discriminate based on gender identity because it treats all “biological males”—that is, cisgender boys and transgender girls—the same. Appellees’ Br 21. But that is just another way of saying the Act treats transgender girls differently from cisgender girls, which is—literally—the definition of gender identity discrimination. [Slip op. at 20 (emphasis added).]

The majority is flatly wrong here. Under the West Virginia law:

Boys who identify as male may not join girls’ sports teams.

Boys who identify as female may not join girls’ sports teams.

Boys who identify as any of the 72 other “genders” may not join girls’ sports teams.

Girls who identify as male may join girls’ sports teams.

Girls who identify as female may join girls’ sports teams.

Girls who identify as any of the 72 other “genders” may join girls’ sports teams.

In brief: Boys, irrespective of their gender identity, may not join girls’ sports teams, and girls, irrespective of their gender identity, may join girls’ sports teams. The Act draws a line based on sex. It disregards, and thus by definition does not discriminate on the basis of, gender identity. (A law that, say, barred girls who identify as males from joining girls’ teams would discriminate on the basis of gender identity.)

The majority’s rulings collapse once you get this elementary point right.

(Please note that for purposes of this post I am assuming that the Supreme Court’s Title VII ruling in Bostock v. Clayton County applies to Title IX. I am assuming, that is, that Title IX’s rule that schools that receive federal funding may not discriminate “on the basis of sex” forbids discrimination on the basis of gender identity (even as it allows, as the majority and the plaintiff argue, sex-segregated sports teams). This question is in fact contested.)

2. The two judges in the majority are very intelligent. The author of the majority opinion, Judge Toby Heytens, was a law clerk for Justice Ruth Bader Ginsburg and a law professor at the University of Virginia law school. The judge who joined his opinion, Judge Pamela Harris, was a law clerk for Justice John Paul Stevens and a law professor at the University of Pennsylvania law school. How could they botch something so simple?

A few possible—and admittedly speculative—answers come to mind. First, Heytens and Harris seem to have been discombobulated by their own transgender rhetoric. Their claim that “treat[ing] transgender girls differently from cisgender girls … is—literally—the definition of gender identity discrimination” seems to have rushed past their brains without their considering what their terms mean.

Once you translate the passage into ordinary English, the claim is revealed as absurd. Treating boys who identify as female differently from girls who identify as female “is—literally—the definition of gender identity discrimination”?!? No, the two groups are obviously being treated differently on the basis of their different sexes, not on the basis of their same gender identities.

Second, Heytens and Harris may well have locked themselves into their wrong holdings even before they heard oral argument in this case. The district judge (a Clinton appointee, as it happens) soundly ruled in favor of state officials. But just after expedited briefing on appeal was completed, Heytens and Harris enjoined operation of the West Virginia law against B.P.J. for the duration of the appeal, and they did so in a one-sentence order devoid of reasoning. Having so dramatically altered the status quo, Heytens and Harris would need much more than the usual dose of judicial humility to acknowledge that they got it wrong.

Third, transgender ideology is the strange new orthodoxy of the Left. Woe to anyone who dares defy it. At age 48, Heytens surely imagines himself a possible Supreme Court nominee in coming years. He would reasonably conclude that he would forfeit his chances if he ruled against B.P.J. At age 61, Harris has probably given up on her Supreme Court prospects, but she has strong ties to the Left that she might prefer not to imperil.

3. Let’s consider the logical consequences of the majority’s illogic. If Title IX requires that boys who identify as female be allowed to join girls’ sports teams, then it must also require that boys who identify as male be allowed to join those same teams. After all, to apply the majority’s rhetoric correctly: Treating boys who identify as female differently from boys who identify as male “is—literally—the definition of gender identity discrimination.”

So the very theory on which the majority has ruled for B.P.J. would outlaw the “sex separation in sports” that B.P.J. wants to avail himself of. And it would transmogrify Title IX from the champion of women’s and girls’ sports into their exterminator.

4. The Supreme Court needs to grant review of this case at the first opportunity and reverse.

The Fourth Circuit panel ruled for B.P.J. on his Title IX claim. But in a rare display of seeming modesty, the majority refrained from ruling fully on B.P.J.’s Equal Protection Clause claim. It instead remanded the case to the district court to address one very wokely worded question: “Even without undergoing Tanner 2 stage puberty, do people whose sex is assigned as male at birth enjoy a meaningful competitive athletic advantage over cisgender girls?”

Given the savvy that Heytens and Harris possess about how the Supreme Court operates, I have to suspect that they remanded on this question in order to try to prevent the Supreme Court from reviewing their ruling. As a general matter, the Court is less disposed to review so-called “interlocutory” (non-final) rulings. Heytens and Harris could thus obtain two or three more years to entrench it as circuit precedent, and a liberal media would depict a denial of certiorari as implicit approval of their rulings.

The Court (irresponsibly, in my view) failed to grant review of the Fourth Circuit’s 2020 ruling in Grimm v. Gloucester County School Board. As a result, the majority in B.P.J. and Judge G. Steven Agee in his excellent dissent spar over whether and how Grimm bears on this case.

The Court has shown a strange aversion to weighing in on transgender cases. Even legal commentators on the Left have been surprised and baffled by that aversion. (See Ian Millhiser’s “The Supreme Court is running away from transgender rights cases.”) It’s well past time for the Court to provide good sense and clarity.