Appeals court rules that Title IX protects trans student in challenge to WV sports ban

A narrow ruling — with a noxious dissent.

On Tuesday, the U.S. Court of Appeals for the Fourth Circuit ruled that West Virginia’s ban on transgender girls participating in girls sports can violate Title IX of the Education Amendments of 1972 in specific cases and might also violate equal protection guarantees under the U.S. Constitution.

The 2-1 ruling is a victory for 13-year-old Becky Pepper-Jackson — the student who sued, referred to as B.P.J. in the ruling — as well as for efforts to further protect trans students from discrimination. It was a limited ruling, however, and the dissenting judge advanced a particularly noxious argument in his opinion.

After West Virginia passed a law that blocks participation in girls scholastic sports to anyone whose “biological sex determined at birth is male,” Pepper-Jackson sued.

Having attended school as a girl since the third grade, she takes puberty blockers as a part of her treatment for her gender dysphoria, and sued after the law’s passage so that she could continue running cross country at school.

From the opening paragraphs of the opinion, Judge Toby Heytens, a Biden appointee, made clear that he was not going to let the state’s semantic gymnastics succeed: “[T]he Act’s sole purpose—and its sole effect—is to prevent transgender girls from playing on girls teams.”

“Given the[] facts” of B.P.J.’s history, Heytens — joined by Judge Pamela Harris, an Obama appointee — wrote, “offering B.P.J. a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all.”

The court ultimately concluded that Pepper-Jackson established “that applying the Act to her would treat her worse than people to whom she is similarly situated, deprive her of any meaningful athletic opportunities, and do so on the basis of sex. That is all Title IX requires.”

Heytens highlighted the limits of the ruling:

Judge G. Steven Agee, a George W. Bush appointee, dissented.

On Twitter/X, West Virginia Attorney General Patrick Morrisey, a Republican, suggested he will seek further review of the case, writing, “We will never stop fighting for our kids and will always say no to the radical trans agenda. We move to the next round and we will prevail!“ He could either seek en banc review from the full Fourth Circuit or ask the U.S. Supreme Court to hear the case. In both instances, however, the court would have to agree to take up his appeal.

---

The majority

In discussing how the law discriminates, Heytens held for the court that — aside from having separate teams based on sex, which was not challenged in the lawsuit — “the way the State has chosen to implement its decision to establish separate athletic teams for boys and girls triggers … intermediate scrutiny review for two independent reasons.”

Specifically, Heytens explained that the “differing treatment of cisgender girls and transgender girls” subjects the law to intermediate scrutiny under the Fourth Circuit’s 2020 decision in Gavin Grimm’s case successfully challenging a school’s policy restricting trans students’ restroom use.

Additionally, the act only blocks trans girls from girls teams — and not trans boys from boys teams. As Heytens noted, “the Act would not have forbidden Gavin Grimm (a transgender boy) from playing on the boys teams at B.P.J.’s school but it does forbid B.P.J. (a transgender girl) from playing on the girls teams.”

B.P.J. was not seeking to end the sex-based sports classifications. She was not even seeking to have the law declared “facially” invalid — meaning, in all circumstances. She, instead, brought an “as-applied” challenge. As Heytens explained, “[S]he challenges [the Act] only as applied to her and seeks an injunction that would prevent the defendants from enforcing it against her.”

Although the district court initially blocked enforcement of the ban against B.P.J., it later granted summary judgment in favor of the state’s scholastic sports commission on both B.P.J.’s equal protection and Title IX claims — finding that the commission would win on the law even if all of the facts were as B.P.J. presented them.

On appeal, Heytens began with the equal protection challenge. Under intermediate scrutiny, the state must show that it is advancing an important governmental interest and that the classification — here, a restriction — is substantially related to that interest. The real question in B.P.J.’s case, Heytens wrote, is “whether excluding her from the girls cross country and track teams is substantially related to the concededly important government interest in competitive fairness.”

In considering that, Heytens first noted that it was undisputed that B.P.J. had started her treatment for gender dysphoria at such an age that she never went through aspects of puberty that “lead to different physical processes” between sexes. However, Heytens also held that — at this early stage of litigation — there was unresolved and conflicting evidence about whether “people whose sex is assigned as male at birth enjoy a meaningful competitive athletic advantage over cisgender girls” even if they do not go through puberty.

As such, the appeals court sent this aspect of the case back to the trial court to resolve the evidentiary questions, which the panel believed are key to resolving the “tailoring” part of the heightened scrutiny test.

On the Title IX claim, however, the appeals court completely reversed the district court, explaining that the only real “question is whether B.P.J. has ‘on the basis of sex, be[en] excluded from participation in,’ ‘denied the benefits of,’ or ‘subjected to discrimination’ in connection with middle school sports. … We conclude the answer is yes.”

The appeals court held that summary judgment should have been granted on the Title IX claim — but in B.P.J.’s favor. Accordingly, the appeals court sent the case back to the trial court for “remedial proceedings” enforcing the court’s holding that applying the ban to B.P.J. violates Title IX.

---

A noxious dissent

Although Agee purported to apply the Supreme Court’s Bostock v. Clayton County precedent holding that “sex discrimination” under Title VII of the Civil Rights Act of 1964 includes gender identity-based discrimination, as well as the Fourth Circuit’s Grimm case, in his dissenting opinion, he minimized their importance in explaining why he thought B.P.J. should have lost her case.

Then, he went further, spending 11 pages taking this “opportunity to emphasize that Grimm was wrongly decided and should be recognized as such.”

That section is a “what’s that now?” of anti-trans rhetoric, including a claim that “a substantial number of transgender individuals detransition,” with citation only to Judge Jeffrey Sutton’s earlier opinion upholding bans on gender-affirming medical care for minors and — although it is not labeled as such — an opinion column from Pamela Paul in The New York Times. Using only those sources, he then concluded, “If a person’s transgender status can so easily change of their own volition, it is not immutable.”

That is disturbing enough on its own. Related to that, though, I want to point to a particularly noxious argument central to Agee’s dissent and key to this moment.

Throughout his dissent — both in the B.P.J. section and the Grimm section, Agee suggests that the fact that a person’s gender presentation, and understanding of their gender identity, can change should lead the court to protect it less. That is based on the courts’ traditional use of “immutability” in determining what level of scrutiny a classification should receive, which has itself been challenged — but, as used by Agee, it becomes a dangerous cudgel.

On the level of scrutiny gender identity should receive itself, Agee pushes the idea that this lack of so-called “immutability” when it comes to gender identity — crediting questionable detransition claims and then massively expanding their import — should lead the court to scrutinize classifications based on a person’s gender identity less under the law than it does other classifications.

Then, on the consideration of B.P.J.’s claims under heightened scrutiny, Agee does it again when expressing his view of “whether excluding B.P.J. — and other transgender girls who have not gone through puberty — is substantially related” to the state’s interest in “ensuring equal opportunities for females.” He, of course, concludes that it is.

But how he does so is, in part, through a discussion of how “[t]aking hormone suppressants is not a permanent condition.”

Buried in a footnote, Agee makes his point:

Putting aside the completely unsupported opinion about “negative side effects” being “too destructive” — the BBC article he cites says no such thing — the key point here is his conclusion: She “may be compelled” to stop taking puberty blockers.

He doesn’t come out and say it, but, also, he does.

A state could first ban a transgender girl from taking puberty blockers, as Sutton allowed in Tennessee and Kentucky and one suspects Agee would as well. Then, because that transgender girl would start developing sex-based differences from the other girls on the team as she was “compelled” by the state to enter puberty, the school and state would be justified in banning her from the girls teams at her school.

Agee’s view lost on Tuesday, but — as bans on gender-affirming medical care are in effect in several states — do not expect this to be the end of this sort of circular, noxious argument.