Case 2:21-cv-00316 Document 512 Filed 01/05/23 Page 1 of 23 PageID #: 29940

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

B. P. J., et al.,
Plaintiffs,

v. CIVIL ACTION NO. 2:21-cv-00316

WEST VIRGINIA STATE BOARD OF EDUCATION, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

West Virginia passed a law that defines “girl” and “woman,” for the purpose of

secondary school sports, as biologically female. Under the law, all biological males,

including those who identify as transgender girls, are ineligible for participation on

girls’ sports teams. B.P.J., a transgender girl who wants to play girls’ sports,

challenges the law. The question before the court is whether the legislature’s chosen

definition of “girl” and “woman” in this context is constitutionally permissible. I find

that it is.

I. Relevant Facts

A. B.P.J.

B.P.J. is an eleven-year-old transgender girl. This means that although B.P.J.’s

biological sex is male, she now identifies and lives as a girl. According to her First

Amended Complaint, B.P.J. began expressing her female gender identity when she
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was three years old. [ECF No. 285-2]. By the end of third grade, B.P.J. expressed

herself fully—both at home and otherwise—as a girl. In 2019, B.P.J. was diagnosed

with gender dysphoria and, at the first signs of puberty, she began taking puberty

blocking medications to treat that condition. [ECF No. 289-21]. As a result, B.P.J. has

not undergone endogenous male puberty.

In 2021, as she prepared to enter middle school, B.P.J. expressed interest in

trying out for the girls’ cross-country and track teams. When her mother, Plaintiff

Heather Jackson, asked the school to allow B.P.J. to participate on the girls’ teams,

the school initially informed her that whether B.P.J. would be permitted to play on

the girls’ teams depended on the outcome of House Bill (“H.B.”) 3293, which was then

pending in the West Virginia legislature. When the law passed, the school informed

Ms. Jackson that B.P.J. would not be permitted to try out for the girls’ teams.

B. The “Save Women’s Sports Bill”

H.B. 3293, entitled the “Save Women’s Sports Bill,” was introduced in the West

Virginia House of Delegates on March 18, 2021. The bill passed and was codified as

West Virginia Code Section 18-2-25d, entitled “Clarifying participation for sports

events to be based on biological sex of the athlete at birth.” The law, which was clearly

carefully crafted with litigation such as this in mind, begins with the following

legislative findings:

(1) There are inherent differences between biological males

and females, and that these differences are cause for
celebration, as determined by the Supreme Court of the
United States in United States v. Virginia (1996);

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(2) These inherent differences are not a valid justification

for sex-based classifications that make overbroad
generalizations or perpetuate the legal, social, and
economic inferiority of either sex. Rather, these
inherent differences are a valid justification for sex-
based classifications when they realistically reflect the
fact that the sexes are not similarly situated in certain
circumstances, as recognized by the Supreme Court of
the United States in Michael M. v. Sonoma County,
Superior Court (1981) and the Supreme Court of
Appeals of West Virginia in Israel v. Secondary Schools
Act. Com’n (1989);

(3) In the context of sports involving competitive skill or

contact, biological males and biological females are not
in fact similarly situated. Biological males would
displace females to a substantial extent if permitted to
compete on teams designated for biological females, as
recognized in Clark v. Ariz. Interscholastic Ass’n (9th
Cir. 1982);

(4) Although necessarily related, as concluded by the

United States Supreme Court in Bostock v. Clayton
County (2020), gender identity is separate and distinct
from biological sex to the extent that an individual’s
biological sex is not determinative or indicative of the
individual’s gender identity. Classifications based on
gender identity serve no legitimate relationship to the
State of West Virginia’s interest in promoting equal
athletic opportunities for the female sex; and

(5) Classifications of teams according to biological sex is

necessary to promote equal athletic opportunities for
the female sex.

W. Va. Code § 18-2-25d(a)(1)–(5).

After making these findings, the law sets forth definitions of “biological sex,”

“female,” and male” as follows:

(1) “Biological sex” means an individual’s physical form as

a male or female based solely on the individual’s
reproductive biology and genetics at birth.

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(2) “Female” means an individual whose biological sex

determined at birth is female. As used in this section,
“women” or “girls” refers to biological females.

(3) “Male” means an individual whose biological sex

determined at birth is male. As used in this section,
“men” or “boys” refers to biological males.

Id. § 18-2-25d(b)(1)–(3).

Finally, the law requires that each athletic team that is “sponsored by any

public secondary school or a state institution of higher education” “be expressly

designated as” either male, female, or coed, “based on biological sex.” Id. § 18-2-25d(c).

Teams that are designated “female” “shall not be open to students of the male sex

where selection for such teams is based upon competitive skill or the activity involved

is a contact sport.” Id. § 18-2-25d(c)(2).

C. Procedural History

On May 26, 2021, B.P.J., through her mother, filed this lawsuit against the

West Virginia State Board of Education and its then-Superintendent W. Clayton

Burch, the Harrison County Board of Education and its Superintendent Dora Stutler,

and the West Virginia Secondary Schools Activities Commission (“WVSSAC”). The

State of West Virginia moved to intervene, and that motion was granted. Plaintiff

then amended her complaint, [ECF No. 64], naming the State of West Virginia and

Attorney General Patrick Morrisey as defendants. Mr. Morrisey has since been

dismissed as a party from this lawsuit.

In her amended complaint, B.P.J. alleges that Defendants Burch, Stutler, and

the WVSSAC deprived her of the equal protection guaranteed to her by the

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Fourteenth Amendment and that the State, the State Board of Education, the

Harrison County Board of Education, and the WVSSAC have violated Title IX. B.P.J.

seeks a declaratory judgment that Section 18-2-25d of the West Virginia Code violates

Title IX and the Equal Protection Clause; an injunction preventing Defendants from

enforcing the law against her; a waiver of the requirement of a surety bond for

preliminary injunctive relief; nominal damages; and reasonable attorneys’ fees.

B.P.J. initially requested a preliminary injunction to allow her to compete on

the girls’ track and cross-country teams during the pendency of this case. Finding

that B.P.J. had a likelihood of success on the merits of her as-applied challenge to the

law, I granted the preliminary injunction. All defendants moved to dismiss, and those

motions were denied. Lainey Armistead, a cisgender 1 female college athlete then

moved to intervene as a defendant and that motion was granted. All parties have now

moved for summary judgment.

II. Legal Standard

Summary judgment is appropriate where the “depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . . ,

admissions, interrogatory answers, or other materials” show that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed R. Civ. P. 56(a), (c)(1)(A).

1“Cisgender” means a person whose gender identity aligns with her biological sex. See Grimm v.
Gloucester Cnty. Sch. Bd., 972 F.3d 586, 594 (4th Cir. 2020), as amended (Aug. 28, 2020), cert. denied,
141 S. Ct. 2878 (2021).

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III. Analysis

B.P.J. alleges that H.B. 3293 violates the Constitution’s Equal Protection

Clause and Title IX. I will address each argument in turn. Before turning to the

merits of those arguments, however, I find it important to address some preliminary

matters.

A. The WVSSAC’s Motion

The WVSSAC does not argue the merits of Plaintiff’s Equal Protection or Title

IX claims. Rather, the WVSSAC only argues that it is not a state actor and is

therefore not subject to scrutiny under either the Equal Protection Clause or Title IX.

I disagree. Defendant WVSSAC’s motion [ECF No. 276] is DENIED.

A court may only apply equal protection scrutiny to state action. U.S. Const.

amend. XIV, § 1, cl. 4.; Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 923–24 (1982).

Likewise, only a party acting under the color of state law is subject to suit pursuant

to 42 U.S.C. § 1983. Despite differing terms, the color-of-law requirement in a § 1983

claim and the state action requirement under the Fourteenth Amendment are

synonymous and are analyzed the same way. See Lugar, 457 U.S. at 923–24; United

States v. Price, 383 U.S. 787, 794 (1966).

“[T]he character of a legal entity is determined neither by its expressly private

characterization in statutory law, nor by the failure of the law to acknowledge the

entity's inseparability from recognized government officials or agencies.” Brentwood

Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 931 (2001) (citing Lebron

v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (1995)). For example, an ostensibly

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private actor can become a state actor when it is “controlled by an ‘agency of the

State,’” or “entwined with governmental policies[,]” or the government is “entwined

in [its] management or control.” Pennsylvania v. Bd. of Dir. of City Trs. of Phila., 353

U.S. 230, 231 (1957); Evans v. Newton, 382 U.S. 296, 299 (1966). There is, however,

no rigid test to determine when a challenged action becomes a state action.

Brentwood Acad., 531 U.S. at 295. No single fact nor set of conditions will definitively

confer state action because there may be a better “countervailing reason against

attributing activity to the government.” Id. at 295–96. “Only by sifting facts and

weighing circumstances can the nonobvious involvement of the State in private

conduct be attributed its true significance.” Lugar, 457 U.S. at 939 (citing Burton v.

Wilmington Parking Auth., 365 U.S. 715, 860 (1961); Peltier v. Charter Day Sch.,

Inc., 37 F.4th 104, 116 (4th Cir. 2022) (“[T]he inquiry is highly fact-specific in

nature.”).

After considering its composition, rulemaking process, obligations under state

law, and other rules for student eligibility, I find the WVSSAC is a state actor. Like

in Brentwood Acad., the WVSSAC’s nominally private character “is overborne by the

pervasive entwinement of public institutions and public officials in its composition

and workings, and there is no substantial reason to claim unfairness in applying

constitutional standards to it.” 531 U.S. at 298. I find that the WVSSAC is a state

actor for several reasons. Though county boards of education have the statutory

authority to supervise and control interscholastic athletic events, they have delegated

that authority to the WVSSAC. [ECF No. 285-1]. Every public secondary school in

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West Virginia is a member of the WVSSAC, and the school principals sit on the

WVSSAC’s Board of Control to propose and vote on sports rules and regulations. Id.

Any rule the WVSSAC passes is then subject to approval by the State Board of

Education, and the State Board of Education requires that any coach who is not also

a teacher be trained by the WVSSAC and certified by the State Board of Education.

Id. And the WVSSAC Board of Directors—the entity that enforces the rules—includes

representatives of the State Superintendent and the State Board of Education, among

other governmental entities. Id.; 127 C.S.R. § 127-1-8.2. Here, it appears that the

WVSSAC cannot exist without the state, and the state cannot manage statewide

secondary school activities without the WVSSAC. The WVSSAC is pervasively

entwined with the state.

The WVSSAC’s motion for summary judgment [ECF No. 276] is therefore

DENIED.

B. Animus

In her Amended Complaint, B.P.J. alleges that H.B. 3293 was introduced in

the legislature “as part of a concerted, nationwide effort to target transgender youth

for unequal treatment.” [ECF No. 64, ¶ 45]. B.P.J. alleges that the law was “targeted

at, and intended only to affect, girls who are transgender.” Id. ¶ 46. In support of

these contentions, B.P.J. points to the actions of bill co-sponsor Delegate Jordan

Bridges. According to the Amended Complaint, Delegate Bridges made a Facebook

post announcing the introduction of the bill and then “‘liked’ comments on his post

that advocated for physical violence against girls who are transgender, compared

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girls who are transgender to pigs, and called girls who are transgender by a pejorative

term.” Id. ¶ 47. In her summary judgment motion, B.P.J. again points the court to

the actions of Delegate Bridges and points to several instances where legislators

made clear that the purpose of the bill was to address transgender participation in

sports.

Notwithstanding these statements, B.P.J. does not argue that the law is

unconstitutional under the Supreme Court’s animus doctrine, and the record lacks

sufficient legislative history to make such a finding. The record makes abundantly

clear, however, that West Virginia had no “problem” with transgender students

playing school sports and creating unfair competition or unsafe conditions. In fact, at

the time it passed the law, West Virginia had no known instance of any transgender

person playing school sports. While the legislature did take note of transgender

students playing sports in other states, it is obvious to me that the statute is at best

a solution to a potential, but not yet realized, “problem.”

Even so, the law is only unconstitutional under the animus doctrine if the

reason for its passage was the “bare desire” to harm transgender people. U.S. Dep’t

of Agric. v. Moreno, 413 U.S. 528, 535 (1973). While the record before me does reveal

that at least one legislator held or implicitly supported private bias against, or moral

disapproval of, transgender individuals, it does not contain evidence of that type of

animus more broadly throughout the state legislature. Therefore, I cannot find

unconstitutional animus on the record before me.

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C. Other Matters

Next, before proceeding to the merits of the case, I find it important to briefly

discuss what this case is not.

First, despite the politically charged nature of transgender acceptance in our

culture today, this case is not one where the court needs to accept or approve B.P.J.’s

existence as a transgender girl. B.P.J., like all transgender people, deserves respect

and the ability to live free from judgment and hatred for simply being who she is. But

for the state legislature, creating a “solution” in search of a problem, the courts would

have no reason to consider eligibility rules for youth athletics. Nevertheless, I must

do so now.

This is also not a case where B.P.J. challenges the entire structure of school

sports. B.P.J. does not challenge, on a broad basis, sex-separation in sports. B.P.J.

wants to play on a girls’ team. And she admits that there are benefits associated with

school athletics, “including when such athletics are provided in a sex-separated

manner.” [ECF No. 286-1, at 1445]. Ultimately, B.P.J.’s issue here is not with the

state’s offering of girls’ sports and boys’ sports. It is with the state’s definitions of

“girl” and “boy.” The state has determined that for purposes of school sports, the

definition of “girl” should be “biologically female,” based on physical differences

between the sexes. And the state argues that its definition is appropriate here

because it is substantially related to an important government interest. B.P.J., for

her part, seeks a legal declaration that a transgender girl is “female.”

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I will not get into the business of defining what it means to be a “girl” or

“woman.” The courts have no business creating such definitions, and I would be hard-

pressed to find many other contexts where one’s sex and gender are relevant

legislative considerations. But I am forced to consider whether the state’s chosen

definition passes constitutional muster in this one discrete context.

D. Equal Protection

Having addressed those matters, I now turn to the merits of B.P.J.’s claim that

H.B. 3293 violates the Constitution’s Equal Protection Clause.

1. Legal Standard

The Equal Protection Clause of the Fourteenth Amendment provides that no

state may deny any person within its jurisdiction “equal protection of the laws.” U.S.

Const. amend. XIV, § 1, cl. 4. In other words, “all persons similarly situated should

be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439

(1985). Realistically, though, every law impacts people differently, and the

Fourteenth Amendment does not prohibit that outcome. Reed v. Reed, 404 U.S. 71,

75 (1971). But the Equal Protection Clause does forbid a statute from placing people

into different classes and treating them unequally for reasons “wholly unrelated to

the objective of that statute.” Id. at 75–76. Ultimately, if a law seeks to treat different

groups of people differently, it must do so “upon some ground of difference having a

fair and substantial relation to the object of the legislation, so that all persons

similarly circumstanced shall be treated alike.” Id. at 76 (quoting Royster Guano Co.

v. Virginia, 253 U.S. 412, 415 (1920)).

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In general, courts presume that a law is constitutional. Based on that

presumption, courts may only overturn a law if the challenger can show that the law’s

classification is not rationally related to any government interest. Moreno, 413 U.S.

at 533. This general review is known as rational basis review. However, the court’s

inquiry becomes more searching if the law disadvantages a group of people who have

historically been discriminated against and whose identity has nothing to do with

their ability to participate in society. Race-based laws, for example, are “immediately

suspect” because “they threaten to stigmatize individuals by reason of their

membership in a racial group.” Shaw v. Reno, 509 U.S. 630, 643 (1993). Laws based

on race, or other suspect classifications such as alienage and national origin, are

subject to strict scrutiny and will only be upheld “upon an extraordinary

justification.” Id. at 643–44 (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256,

272 (1979)). Under strict scrutiny, the law must be “narrowly tailored to serve a

compelling governmental interest.” Cleburne, 473 U.S. at 440.

In the middle of rational basis review and strict scrutiny lies intermediate

scrutiny. Intermediate scrutiny applies to laws that discriminate on the basis of a

quasi-suspect classification, like sex, United States v. Virginia, 518 U.S. 515, 533

(1996), and transgender status, Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586,

611 (4th Cir. 2020), as amended (Aug. 28, 2020), cert. denied, 141 S. Ct. 2878 (2021)

(“Engaging with the suspect class test, it is apparent that transgender persons

constitute a quasi-suspect class.”). Sex discrimination receives intermediate scrutiny

because while states have historically used sex as a basis for invidious discrimination,

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we recognize that there are some “real differences” between males and females that

could legitimately form the basis for different treatment. Virginia, 518 U.S. at 533.

The Supreme Court has long “viewed with suspicion laws that rely on

‘overbroad generalizations about the different talents, capacities, or preferences of

males and females.’” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1692 (2017)

(quoting Virginia, 518 U.S. at 533). Therefore, laws that discriminate based on sex

must be backed by an “exceedingly persuasive justification.” Virginia, 518 U.S. at

513. That is to say, the law’s proponents must show that it “serves important

governmental objectives and that the discriminatory means employed are

substantially related to the achievement of those objectives.” Miss. Univ. for Women

v. Hogan, 458 U.S. 718, 724 (1982). Even if the law’s objective is to protect the

members of one sex, that “objective itself is illegitimate” if it relies on “fixed notions

concerning [that sex’s] roles and abilities.” Morales-Santana, 137 S. Ct. at 1692.

The party defending the statute must “present[] sufficient probative evidence

in support of its stated rationale for enacting a [sex] preference, i.e., . . . the evidence

[must be] sufficient to show that the preference rests on evidence-informed analysis

rather than on stereotypical generalizations.” H.B. Rowe Co. v. Tippett, 615 F.3d 233,

242 (4th Cir. 2010) (quoting Eng’g Contractors Ass’n of S. Fla. v. Metro. Dade Cnty.,

122 F.3d 895, 910 (11th Cir. 1997)); Concrete Works of Colo., Inc. v. City & Cnty. of

Denver, 321 F.3d 950, 959 (10th Cir. 2003) (“[T]he gender-based measures . . . [must

be] based on ‘reasoned analysis rather than [on] the mechanical application of

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traditional, often inaccurate, assumptions.’” (quoting Miss. Univ. for Women, 458

U.S. at 726)).

2. Discussion

There is no debate that intermediate scrutiny applies to the law at issue here—

H.B. 3293 plainly separates student athletes based on sex. And even B.P.J. agrees

that the state has an important interest in providing equal athletic opportunities for

female students. [ECF No. 291, at 24]. As discussed earlier, B.P.J. does not challenge

sex-separation in sports on a broad basis; she does not argue that teams should be

separated based on some other factor or not separated at all. Rather, B.P.J. recognizes

the benefits of sex-separated athletics and takes issue only with the state’s definitions

of “girl” and “woman” as based on biological sex.

B.P.J. argues that “H.B. 3293 excludes students from sports teams based on

‘biological sex’ and defines ‘biological sex’ solely in terms of ‘reproductive biology and

genetics at birth.’” Id. at 19. According to B.P.J., H.B. 3293 uses this “‘ends-driven

definition[] of “biological sex”’ to ‘guarantee a particular outcome’: Barring girls who

are transgender from qualifying as girls for purposes of school sports and thereby

categorically excluding them from girls’ teams and therefore from school sports

altogether.” Id. (quoting Grimm, 972 F.3d at 626 (Wynn, J., concurring)). B.P.J.

argues that this definition of “biological sex,” and the related definitions of “girl” and

“woman,” are not substantially related to the government interest in providing equal

athletic opportunities for females.

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The State of West Virginia, the State Board defendants, the Harrison County

defendants, and Intervenor Lainey Armistead all argue that the state’s classification

based on “biological sex” is substantially related to its important interest in providing

equal athletic opportunities for females. The state points to a longstanding

recognition in the courts that “‘[p]hysical differences between men and women . . . are

enduring’ and render ‘the two sexes . . . not fungible.’” [ECF No. 305, at 13–14 (quoting

Virginia, 518 U.S. at 533)]. And the state argues that in order to preserve athletic

opportunities for females, it is necessary to exclude biological males from female

teams because males as a group have significant athletic advantage over females and

thus the two groups are not similarly situated. [ECF No. 287, at 6–8].

The record does make clear that, in passing this law, the legislature intended

to prevent transgender girls from playing on girls’ sports teams. In making that

decision, the legislature considered an instance in Connecticut where two

transgender girls ran on the girls’ track team and won at least one event. Cisgender

girls there sued, claiming the state’s policy allowing the transgender girls to play on

girls’ teams violated Title IX. Id. at 5. But acting to prevent transgender girls, along

with all other biological males, from playing on girls’ teams is not unconstitutional if

the classification is substantially related to an important government interest. The

state’s interest in providing equal athletic opportunity to females is not at issue here,

and B.P.J. does not argue that sex-separate sports in general are not substantially

related to that interest. Rather, B.P.J. argues that she and other transgender girls

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should be able to play on girls’ teams despite their male sex, because their gender

identity is “girl.”

While sex and gender are related, they are not the same. See e.g., PFLAG,

PFLAG National Glossary of Terms (June 2022), http://pflag.org/glossary (defining

“biological sex” as the “anatomical, physiological, genetic, or physical attributes that

determine if a person is male, female, or intersex . . . includ[ing] both primary and

secondary sex characteristics, including genitalia, gonads, hormone levels, hormone

receptors, chromosomes, and genes” and explaining that “[b]iological sex is often

conflated or interchanged with gender, which is more societal than biological, and

involves personal identity factors”). It is beyond dispute that, barring rare genetic

mutations not at issue here, a person either has male sex chromosomes or female sex

chromosomes. Gender, on the other hand, refers to “a set of socially constructed roles,

behaviors, activities, and attributes that a given society considers appropriate.” Id.

Gender identity, then, is “[a] person’s deeply held core sense of self in relation to

gender.” Id. For most people, gender identity is in line with biological sex. See Grimm,

972 F.3d at 594. That is, most females identify as girls or women, and most males

identify as boys or men. But gender is fluid. There are females who may prefer to

dress in a style that is more typical of males (or vice versa), and there are males who

may not enjoy what are considered typical male activities. These individuals may,

however, still identify as the gender that aligns with their sex. Others may not. When

one’s gender identity is incongruent with their sex, that person is transgender. To be

transgender, one must have a deeply held “consistent[], persistent[], and insistent[]”

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conviction that their gender is, “on a binary, . . . opposite to their” biological sex. Id. I

recognize that being transgender is natural and is not a choice. But one’s sex is also

natural, and it dictates physical characteristics that are relevant to athletics.

Whether a person has male or female sex chromosomes determines many of

the physical characteristics relevant to athletic performance. Those with male

chromosomes, regardless of their gender identity, naturally undergo male puberty,

resulting in an increase in testosterone in the body. B.P.J. herself recognizes that

“[t]here is a medical consensus that the largest known biological cause of average

differences in athletic performance between [males and females] is circulating

testosterone beginning with puberty.” [ECF No. 291, at 28]. While some females may

be able to outperform some males, it is generally accepted that, on average, males

outperform females athletically because of inherent physical differences between the

sexes. This is not an overbroad generalization, but rather a general principle that

realistically reflects the average physical differences between the sexes. Given

B.P.J.’s concession that circulating testosterone in males creates a biological

difference in athletic performance, I do not see how I could find that the state’s

classification based on biological sex is not substantially related to its interest in

providing equal athletic opportunities for females.

In parts of her briefing, B.P.J. asks me to find that specifically excluding

transgender girls from the definition of “girl” in this context is unconstitutional

because transgender girls can take puberty blockers or other hormone therapies to

mitigate any athletic advantage over cisgender females. B.P.J., for example, is

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biologically male, but she identifies as a girl. To express her gender identity, she goes

by a traditionally feminine name, wears her hair long, uses female pronouns, and in

all other respects lives as a girl. Before the first signs of puberty, B.P.J. made no other

changes as a result of her transgender identity. But, once she started showing signs

of male puberty, B.P.J. began taking puberty blocking medications, pausing the male

puberty process. In that respect, B.P.J. argues that she has not gained the physical

characteristics typical of males during and after puberty.

While this may be true for B.P.J., other transgender girls may not take those

medications. They may not even come to realize or accept that they are transgender

until after they have completed male puberty. Even if a transgender girl wanted to

receive hormone therapy, she may have difficulty accessing those treatment options

depending on her age and the state where she lives. And, as evidenced by the

thousands of pages filed by the parties in this case, there is much debate over whether

and to what extent hormone therapies after puberty can reduce a transgender girl’s

athletic advantage over cisgender girls. Additionally, of course, there is no

requirement that a transgender person take any specific medications or undergo

hormone therapy before or after puberty. A transgender person may choose to only

transition socially, rather than medically. In other words, the social, medical, and

physical transition of each transgender person is unique.

The fact is, however, that a transgender girl is biologically male and, barring

medical intervention, would undergo male puberty like other biological males. And

biological males generally outperform females athletically. The state is permitted to

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legislate sports rules on this basis because sex, and the physical characteristics that

flow from it, are substantially related to athletic performance and fairness in sports.

Could the state be more inclusive and adopt a different policy, as B.P.J.

suggests, which would allow transgender individuals to play on the team with which

they, as an individual, are most similarly situated at a given time? Of course. But it

is not for the court to impose such a requirement here. Sex-based classifications fall

under intermediate scrutiny and therefore do not have a “narrowly-tailored”

requirement. As intervenor, Lainey Armistead, points out, “[s]ome boys run slower

than the average girl . . . [and] [s]ome boys have circulating testosterone levels similar

to the average girl because of medical conditions or medical interventions,” but B.P.J.

denies that the latter “would be similarly situated [to cisgender girls] for purposes of

Title IX and the Equal Protection Clause,” and does not argue that they should be

allowed to play on girls’ teams. [ECF No. 288, at 17 (citing ECF No. 286-1, at 1473)].

This is inconsistent with her argument that the availability of hormone therapies

makes transgender girls similarly situated to cisgender girls. In fact, after reviewing

all of the evidence in the record, including B.P.J.’s telling responses to requests for

admission, it appears that B.P.J. really argues that transgender girls are similarly

situated to cisgender girls for purposes of athletics at the moment they verbalize their

transgender status, regardless of their hormone levels.

The legislature’s definition of “girl” as being based on “biological sex” is

substantially related to the important government interest of providing equal athletic

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opportunities for females. B.P.J.’s motion for summary judgment on this basis is

DENIED.

E. Title IX

Finally, I address B.P.J.’s claim that H.B. 3293 violates Title IX. B.P.J. brings

this claim against the State of West Virginia, the State Board of Education, the

County Board of Education, and the WVSSAC.

1. Legal Standard

Title IX provides that “no person . . . shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial assistance.” 20 U.S.C.

§ 1681(a). To succeed on a Title IX claim, a plaintiff must prove that she was (1)

excluded from an educational program on the basis of sex; (2) that the educational

institution was receiving federal financial assistance at the time; and (3) that

“improper discrimination caused [her] harm.” Grimm, 972 F.3d at 616 (citing Preston

v. Va. ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir. 1994)). “In the Title

IX context, discrimination ‘mean[s] treating [an] individual worse than others who

are similarly situated.’” Id. at 618 (quoting Bostock v. Clayton Cnty., 140 S. Ct. 1731,

1741 (2020)). Title IX permits sex-separate athletic teams “where selection for such

teams is based upon competitive skill or the activity involved is a contact sport.” 34

C.F.R. § 106.41(b).

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2. Discussion

B.P.J. argues that H.B. 3293 violates Title IX because it excludes transgender

girls from participation on girls’ sports teams. B.P.J. argues that this amounts to

complete exclusion from school sports altogether, and that it is discrimination

because she and other transgender girls are similarly situated to cisgender girls.

[ECF No. 291, at 17]. The state responds that the law does not violate Title IX because

it does not exclude B.P.J. from school athletics. “To the contrary, it simply designates

on which team [she] shall play.” [ECF No. 287, at 22]. And, the County Defendants

argue that Title IX authorizes sex separation in sports in the same scenarios outlined

in H.B. 3293—“where selection for such teams is based upon competitive skill or the

activity involved is a contact sport.” W. Va. Code § 18-2-25d(c)(2). All Defendants2

argue that while it did not define the term, Title IX used “sex” in the biological sense

because its purpose was to promote sex equality. Therefore, they argue that H.B. 3293

furthers, not violates, Title IX. I agree.

Title IX authorizes sex separate sports in the same manner as H.B. 3293, so

long as overall athletic opportunities for each sex are equal. 34 C.F.R. § 106.41(b)–(c).

As other courts that have considered Title IX have recognized, although the

regulation “applies equally to boys as well as girls, it would require blinders to ignore

that the motivation for the promulgation of the regulation” was to increase

opportunities for women and girls in athletics. Williams v. Sch. Dist. of Bethlehem,

Pa., 998 F.2d 168, 175 (3d Cir. 1993). There is no serious debate that Title IX’s

2 Excluding the WVSSAC.

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endorsement of sex separation in sports refers to biological sex. Nevertheless, B.P.J.

argues that transgender girls are similarly situated to cisgender girls, and therefore

their exclusion from girls’ teams is unlawful discrimination. But as I have already

discussed, transgender girls are biologically male. Short of any medical intervention

that will differ for each individual person, biological males are not similarly situated

to biological females for purposes of athletics. And, despite her repeated argument to

the contrary, transgender girls are not excluded from school sports entirely. They are

permitted to try out for boys’ teams, regardless of how they express their gender.

I do not find that H.B. 3293, which largely mirrors Title IX, violates Title IX.

B.P.J.’s motion for summary judgment on this basis is DENIED.

IV. Conclusion

I have no doubt that H.B. 3293 aimed to politicize participation in school

athletics for transgender students. Nevertheless, there is not a sufficient record of

legislative animus. Considering the law under the intermediate scrutiny standard, I

find that it is substantially related to an important government interest. B.P.J.’s

motion for summary judgment is DENIED. Defendant WVSSAC’s motion for

summary judgment [ECF No. 276] is DENIED. The motions for summary judgment

filed by the State of West Virginia [ECF No. 285], the Harrison County defendants

[ECF No. 278], the State Board defendants [ECF No. 283], and Intervenor Lainey

Armistead [ECF No. 286] are GRANTED to the extent they argue that H.B. 3293 is

constitutional and complies with Title IX. The preliminary injunction is

DISSOLVED. All other pending motions are DENIED as moot.

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The court DIRECTS the Clerk to send a copy of this Order to counsel of record

and any unrepresented party. The court further DIRECTS the Clerk to post a copy of

this published opinion on the court’s website, www.wvsd.uscourts.gov.

ENTER: January 5, 2023

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