In a topsy-turvy ruling last week (in B.P.J. v. West Virginia State Board of Education), federal district judge Joseph R. Goodwin issued a preliminary injunction that requires school officials to allow “B.P.J.,” an 11-year-old boy who identifies as female, to try out for the girls’ cross-country and track teams at his school. Specifically, Goodwin’s order bars school officials from applying to B.P.J. West Virginia’s recently enacted “Save Women’s Sports Bill,” which provides that girls’ sports teams “shall not be open to students of the male sex.”
In reality-denying newspeak, Goodwin asserts that “B.P.J. is an eleven-year-old girl” who was “assigned the sex of male at birth.” On B.P.J.’s claim that the West Virginia law violates the Equal Protection Clause, Goodwin evades the simple fact that the law categorizes on the basis of biological sex by maintaining that B.P.J. is “not most similarly situated with cisgender boys” but is instead “similarly situated to other [sic] girls.” Based on that sleight of hand, Goodwin asserts that “there is an inescapable conclusion that [the law] discriminates on the basis of transgender status.”
Applying the intermediate scrutiny dictated by the Fourth Circuit’s badly misguided decision in Grimm v. Gloucester County School Board, Goodwin opines that the West Virginia law “as applied to B.P.J. is not substantially related to providing equal athletic opportunities for girls.” (Emphasis added.) But surely the law’s relation to a legitimate state interest should be measured in the aggregate, not in each individual application. Further, while some of Goodwin’s argument is specific to B.P.J. (e.g., the puberty-delaying drugs that B.P.J. is taking means that he “will not have any inherent physical advantage” over girls), one big part of it would apply to any other male seeking to participate on a girls’ team—namely, that since the “number of transgender people who wish to participate in school-sponsored sports” is very small as a percentage of the overall population, “permitting B.P.J. to participate on the girls’ teams would not take away athletic opportunities from other [sic] girls.” That argument is patently false for sports in which participation is limited, as any boy who, say, plays on the girls’ basketball time is depriving a girl of playing time every minute he is on the court.
Goodwin goes on to find that the West Virginia law also likely violates Title IX because it “discriminates against [B.P.J.] ‘on the basis of sex.’” That is indeed a plausible extension of the badly flawed reasoning of Justice Gorsuch’s majority opinion in Bostock v. Clayton County. But Goodwin doesn’t seem to realize that the same logic would mean that having separate sports teams for males and females also violates Title IX.
Over the dissents of Justice Thomas and Justice Alito, the Supreme Court made a grave mistake last month in denying review of Grimm v. Gloucester County School Board. Goodwin’s ruling is but one example of the continuing damage that mistake will cause.