Stay Denied

Case 2:21-cv-00316 Document 527 Filed 02/07/23 Page 1 of 7 PageID #: 30084
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
Pending before the court is Plaintiff’s Motion for a Stay Pending Appeal. [ECF
No. 515]. For the reasons stated herein, B.P.J.’s motion is DENIED.
I. Background
This case concerned the lawfulness of West Virginia’s Save Women’s Sports
Act (the “Act”), a law passed by the West Virginia Legislature in April 2021. The Act
classifies school athletic teams according to biological sex and prohibits biological
males from participating on athletic teams designated for females. W. Va. Code § 18-
2-25d(a)(5), (b), (c)(2). B.P.J., a transgender minor seeking to join her middle school’s
girls’ cross country and track teams, filed a Complaint with this court, alleging that
the Act violates the Equal Protection Clause of the Fourteenth Amendment and Title
IX. [ECF No. 1]. On July 21, 2021, I granted B.P.J. a preliminary injunction enjoining
enforcement of the Act against her. [ECF No. 67]. Thus, B.P.J. was able to compete
on the girls’ cross country and track teams during the pendency of this case.
The parties filed motions for summary judgment on April 21, 2022. [ECF Nos.
276, 278, 283, 285, 286, 289]. On January 5, 2023, I denied B.P.J.’s motion for
summary judgment and granted summary judgment in favor of the State of West
Virginia, the Harrison County defendants, the State Board defendants, and
Intervenor Lainey Armistead (collectively, the “Defendants”). [ECF No. 512]. I also
dissolved the preliminary injunction. Id.
On January 20, 2023, B.P.J. filed the instant motion requesting that the court
stay its January 5, 2023 Order, dissolving the preliminary injunction, until her
appeal is resolved. [ECF No. 515]. B.P.J. seeks this relief so that she can “continue
participating on those [athletic] teams consistent with her gender identity.” Id. at 5.
Defendants jointly responded on January 27, 2023. [ECF No. 520]. B.P.J. replied on
January 30, 2023. [ECF No. 521].
II. Legal Standard
Rule 62(d) of the Federal Rules of Civil Procedure permits the court to “restore”
an injunction “[w]hile an appeal is pending from . . . final judgment that . . . dissolves
. . . [the] injunction.” When ruling on a motion to stay an order, the court considers
the following four factors: “(1) whether the stay applicant has made a strong showing
that [s]he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and (4) where the public interest
lies.” Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S.
2
770, 776 (1987)). “The first two factors . . . are the most critical,” and a party seeking
a stay must demonstrate more than a mere possibility of success on the merits. Id. at
434.
III. Discussion
As the Defendants have acknowledged, this was a novel and difficult case. See
[ECF No. 520, at 13]. With respect to the instant motion, the second, third, and fourth
factors weigh heavily in favor of granting B.P.J.’s motion for a stay. B.P.J. is a twelve-
year-old transgender girl in middle school, often considered a memorable and pivotal
time in a child’s life. For many children, the middle school experience is shaped
considerably by their participation on their school’s athletic teams. B.P.J.’s
experience has been no different. [ECF No. 515-1, ¶¶ 5–6]. Moreover, as I expressed
in my previous Orders, not one child has been or is likely to be harmed by B.P.J.’s
continued participation on her middle school’s cross country and track teams. [ECF
No. 67, at 11; ECF No. 512, at 9]. Both cross country and track are non-contact sports,
and B.P.J. often finishes near the end of the pack, [ECF Nos. 515-3, 515-4]. I am
unpersuaded, as Defendants have argued, that B.P.J. finishing ahead of a few other
children, who would have placed one spot higher without her participation,
constitutes a substantial injury. In the end, the only person truly injured by the
enforcement of the Act against her is B.P.J., who must now watch her teams compete
from the sidelines. It is in the public interest that all children who seek to participate
in athletics have a genuine opportunity to do so. Moreover, there is a public interest
3
in celebrating not only the unique differences of those who fit into society’s binary
world but also those who fall outside that box.
That said, a law is not deemed unconstitutional simply because it causes harm.
When analyzing equal protection claims, courts apply different levels of scrutiny to
different types of classifications. In this case, the court applied intermediate scrutiny
to the Act because the Act “separates student athletes based on sex.” [ECF No. 512,
at 14]. This level of scrutiny applied to both B.P.J.’s facial and as-applied challenges.
See Oswald v. Ireland-Imhof, 599 F. Supp. 3d 211, 218 (D.N.J. 2022) (applying the
same level of scrutiny to the plaintiff’s facial and as-applied challenges). To pass
intermediate scrutiny, a law must be substantially related to an important
governmental objective. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).
As I explained in my Order granting summary judgment to the Defendants,
B.P.J. never challenged the well-accepted practice of separating sports by sex; rather,
she only challenged the state’s definitions of “male” and “female,” which determine
the athletic team an individual may participate on. [ECF No. 512, at 10]. To achieve
sex-separated sports, however, the state needed to adopt some definition to determine
eligibility for participation on either team. In this case, the state, claiming an interest
in promoting equal athletic opportunities for females, drew the line at biological sex
determined at birth. It is common knowledge that “sex, and the physical
characteristics that flow from it,” are linked “to athletic performance and fairness in
sports.” Id. at 19. Thus, separating athletic teams based on biology is substantially
4
related to the state’s important interest in providing equal athletic opportunities to
females, who would otherwise be displaced if required to compete with males. The
Act, therefore, is not violative of the Equal Protection Clause.
As for Title IX, which authorizes sex-separate sports, “[t]here is no serious
debate that [its] endorsement . . . refers to biological sex.” Id. at 21–22. Like the
alleged interest put forth by the state in this case, the goal of Title IX “was to increase
opportunities for women and girls in athletics.” Id. at 21 (citing Williams v. Sch. Dist.
of Bethlehem, Pa., 998 F.2d 168, 175 (3d Cir. 1993)). Thus, I could not, and still
cannot, find that the Act, “which largely mirrors Title IX, violates Title IX.” Id. at 22.
As such, I am unpersuaded that B.P.J. is likely to succeed on her facial challenge of
the Act on appeal.
Under the above analysis, the state is permitted to use biology as the sole
criterion in separating school athletic teams. The legislature, of course, could have
used less rigid definitions which would allow transgender individuals to play on the
athletic team consistent with their gender identity. Indeed, more inclusive definitions
might have even furthered the legislature’s stated objective. “But it [was] not for the
court to impose such a requirement here.” Id. at 19. The question before the court was
whether the Act survives intermediate scrutiny, and intermediate scrutiny does not
require the tightest fit between means and ends for a law to withstand constitutional
muster.
5
B.P.J.’s as-applied challenge asked the court to consider her gender in lieu of
sex and to include her in the state’s definition of “female.” To do so, the court would
have needed to assess B.P.J.’s individual characteristics, which is not appropriate
under intermediate scrutiny. The court was required, instead, to consider whether
excluding B.P.J. from teams designated as female—because she is biologically male
and males consistently outperform females in athletics—is substantially related to
the important government interest of providing equal athletic opportunities for
females. The court answered that question in the affirmative: intermediate scrutiny
permits the line drawing between “males” and “females” adopted here by the state in
the context of sports, without individual consideration of occasional outliers. Id. The
analysis must end there. Had the court looked any further and taken B.P.J.’s gender
and sex characteristics into account, it would have been applying strict scrutiny’s
narrow tailoring requirement. See id. That analysis also would have been
inconsistent with my decision to uphold the legislature’s chosen definitions of “male”
and “female” for the purpose of athletics. Accordingly, I cannot find that B.P.J. is
likely to succeed on her as-applied challenge of the Act on appeal.
Because B.P.J. cannot satisfy the first prong of the test to obtain a stay, her
motion is DENIED.
6
IV. Conclusion
For the foregoing reasons, B.P.J.’s Motion for a Stay Pending Appeal [ECF No.
515] is DENIED. The court DIRECTS the Clerk to send a copy of this Order to counsel
of record and any unrepresented party.
ENTER: February 7, 2023

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Case 2:21-cv-00316 Document 527 Filed 02/07/23 Page 1 of 7 PageID #: 30084

IN THE UNITED STATES DISTRICT COURT

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

WEST VIRGINIA STATE BOARD OF EDUCATION, et al.,

MEMORANDUM OPINION AND ORDER

dissolved the preliminary injunction. Id.

January 30, 2023. [ECF No. 521].

II. Legal Standard

an injunction “[w]hile an appeal is pending from . . . final judgment that . . . dissolves

considerably by their participation on their school’s athletic teams. B.P.J.’s

in athletics have a genuine opportunity to do so. Moreover, there is a public interest

world but also those who fall outside that box.

intermediate scrutiny, a law must be substantially related to an important

As I explained in my Order granting summary judgment to the Defendants,

determined at birth. It is common knowledge that “sex, and the physical

related to the state’s important interest in providing equal athletic opportunities to

Act, therefore, is not violative of the Equal Protection Clause.

As for Title IX, which authorizes sex-separate sports, “[t]here is no serious

As such, I am unpersuaded that B.P.J. is likely to succeed on her facial challenge of

the Act on appeal.

have needed to assess B.P.J.’s individual characteristics, which is not appropriate

excluding B.P.J. from teams designated as female—because she is biologically male

and males consistently outperform females in athletics—is substantially related to

the important government interest of providing equal athletic opportunities for

inconsistent with my decision to uphold the legislature’s chosen definitions of “male”

likely to succeed on her as-applied challenge of the Act on appeal.

of record and any unrepresented party.

ENTER: February 7, 2023

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