In early January, I highlighted the federal district judge, Clinton appointee Joseph R. Goodwin, who had the guts and humility to reverse his position and to dissolve the preliminary injunction that he had initially entered against West Virginia’s “Save Women’s Sports” law. Under the West Virginia law, biological males cannot take part on girls’ sports teams in public schools. Goodwin ruled that the law survives intermediate scrutiny under the Equal Protection Clause and that it satisfied—indeed, “largely mirrors”—Title IX.
Just after expedited briefing was completed on appeal (in B.P.J. v. West Virginia Board of Education), a divided Fourth Circuit panel, in a one-sentence order devoid of reasoning, dramatically altered the status quo, as it enjoined operation of the West Virginia law for the duration of the appeal.
West Virginia has now filed in the Supreme Court a motion to vacate the Fourth Circuit’s injunction. From the introduction to that motion (citations omitted):
[The Fourth Circuit’s] 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. Without that separation, there is “a substantial risk that boys would dominate the girls’ programs and deny them an equal opportunity to compete in interscholastic events.” Separate teams also “aid in th[e] equalization” of athletics programs for men and women by “mak[ing] monitoring of the opportunities provided easier.” And sometimes, co-ed teams cause a “detrimental effect on the safety of the participants.” For these and other reasons, many have recognized that “commingling of the biological sexes in the female athletics arena would significantly undermine the benefits” that separate sports teams “afford[] to female student athletes.”
Nothing warrants the Fourth Circuit majority’s radical approach, and this Court should vacate its unreasoned and incorrect injunction. Complete lack of analysis is the first tell that something is amiss, as federal courts should not enjoin democratically passed legislation without at least providing a rationale. What’s more, B.P.J. will not succeed on the merits. All parties, B.P.J. included, agree that separated sports teams serve important interests. Consistent with that starting point, the Act makes the reasonable judgment that many have made before: Biological differences between males and females matter in sports. Both Title IX and the Fourteenth Amendment allow that judgment.
Let’s hope that the Court promptly grants West Virginia’s motion.