Petition for Writ of Certiorari — West Virginia, et al., Petitioners v. B. P. J., By Her Next Friend and Mother, Heather Jackson

Supreme Court briefJul 11, 2024

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Text

No. ______

In the Supreme Court of the United States

STATE OF WEST VIRGINIA, ET AL.,

Petitioners,

B.P.J., BY NEXT FRIEND AND MOTHER,

HEATHER JACKSON,

Respondent.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

CURTIS R. A. CAPEHART

Deputy Attorney General

SPENCER J. DAVENPORT

Assistant Solicitor General

Counsel for Petitioner State of West Virginia

[additional counsel listed on signature page]

QUESTIONS PRESENTED

Like everywhere else, West Virginia schools offer

separate sports teams for boys and girls. The West

Virginia Legislature concluded that biological boys should

compete on boys’ and co-ed teams but not girls’ teams.

This separation made sense, the Legislature found,

because of the “inherent physical differences between

biological males and biological females.”

A parent sued on behalf of her child, B.P.J., arguing

that the State must allow biological boys who identify as

girls to compete on girls’ teams. After extensive

discovery, the district court disagreed, entering summary

judgment for the State on claims under the Equal

Protection Clause and Title IX. Yet a divided Fourth

Circuit panel granted an injunction pending appeal.

B.P.J. then beat and displaced hundreds of girls in track

and field.

Ultimately, the same divided panel ruled in B.P.J.’s

favor on the Title IX claim and vacated the district court’s

judgment for the defendants on the equal-protection

claim. Judge Agee dissented, criticizing the majority for

“inappropriately expand[ing] the scope of the Equal

Protection Clause and upend[ing] the essence of Title IX.”

App.44a.

He hoped this Court would “take the

opportunity with all deliberate speed to resolve these

questions of national importance.” App.74a

The questions presented are:

1. Whether Title IX prevents a state from consistently

designating girls’ and boys’ sports teams based on

biological sex determined at birth.

2. Whether the Equal Protection Clause prevents a state

from offering separate boys’ and girls’ sports teams

based on biological sex determined at birth.

III

PARTIES TO THE PROCEEDING

Petitioners who were intervenors in the district court

and intervenor-appellees in the court of appeals are the

State of West Virginia and Lainey Armistead.

Petitioners who were defendants in the district court

and defendant-appellees in the court of appeals are the

West Virginia State Board of Education; Harrison County

Board of Education; W. Clayton Burch, in his official

capacity as State Superintendent; and Dora Stutler, in her

official capacity as Harrison County Superintendent.

West Virginia Secondary School Activities Commission

was a defendant in the district court and defendantappellee in the court of appeals.

Respondent who was a plaintiff in the district court and

plaintiff-appellant in the court of appeals is B.P.J., by next

friend and mother, Heather Jackson.

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

B.P.J. by Jackson v. W. Va. State Bd. of Educ., No.

2:21-cv-00316 (S.D. W. Va.), memorandum opinion and

order granting defendants’ motions for summary

judgment issued January 5, 2023; and

B.P.J. by Jackson v. W. Va. State Bd. of Educ., No. 231078 (4th Cir.), opinion reversing in part, vacating in part,

and remanding with instructions issued April 16, 2024.

There are no other directly related proceedings within

the meaning of this Court’s Rule 14.1(b)(iii).

TABLE OF CONTENTS

Page

Questions Presented ............................................................ I

Introduction .......................................................................... 1

Opinions Below ..................................................................... 3

Jurisdiction............................................................................ 4

Constitutional and Statutory Provisions Involved ........... 4

Statement .............................................................................. 4

Reasons For Granting The Petition ................................. 14

This Case Is An Ideal Vehicle to Address

Vital Questions Of Federal Law .............................. 15

II.

The Title-IX Question Warrants Review................ 18

The circuits are split over whether

school policies that divide the sexes based

on biological differences violate Title IX ....... 18

Title IX has always been understood to

allow sex-specific sports teams and

privacy spaces ................................................... 23

Various clear-statement canons

undermine the Fourth Circuit’s Title IX

interpretation .................................................... 24

III. The Equal-Protection Question Warrants

Review ........................................................................ 25

The circuits are split over whether and

how biology-based distinctions constitute

actionable discrimination ................................. 25

The Fourth Circuit’s approach to

as-applied challenges sharply conflicts

with this Court’s decisions ............................... 29

The Fourth Circuit’s reasoning on

similarity flouts this Court’s precedents

and other courts’ decisions .............................. 30

Conclusion ........................................................................... 33

VII

TABLE OF APPENDICES

Appendix A — Court of appeals opinion

(April 16, 2024) ......................................... 1a

Appendix B — District court opinion

(January 5, 2023) ................................... 75a

Appendix C — U.S. Supreme Court order

(April 6, 2023) ......................................... 97a

Appendix D — Relevant state statute

W. VA. CODE § 18-2-25d ........................ 99a

Appendix E — Relevant Title IX statutes

and regulation

20 U.S.C. §§ 1681, 1686

34 C.F.R. § 106.41 ................................ 103a

VIII

TABLE OF AUTHORITIES

Page(s)

Cases

A.C. v. Metro Sch. Dist. of Martinsville,

75 F.4th 760 (2023) ........................................... 23, 26, 29

Adams ex rel. Kasper v. Sch. Bd. of

St. Johns Cnty.,

57 F.4th 791 (11th Cir. 2022) ...................... 3, 18, 19, 20,

22, 26, 27, 28, 31

Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy,

548 U.S. 291 (2006) ....................................................... 24

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ....................................................... 20

B.C. v. Bd. of Educ., Cumberland Reg’l

Sch. Dist.,

531 A.2d 1059 (N.J. App. Div. 1987) ........................... 32

Back Beach Neighbors Comm. v. Town of

Rockport,

63 F.4th 126 (1st Cir. 2023) .......................................... 33

Bond v. United States,

572 U.S. 844 (2014) ....................................................... 24

Bostock v. Clayton Cnty.,

590 U.S. 644 (2020) ........................................... 18, 21, 22

Brandt ex rel. Brandt v. Rutledge,

47 F.4th 661 (8th Cir. 2022) ......................................... 26

Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n,

531 U.S. 288 (2001) ....................................................... 24

TABLE OF AUTHORITIES

(continued)

Page(s)

Bucklew v. Precythe,

587 U.S. 119 (2019) ....................................................... 29

Califano v. Boles,

443 U.S. 282 (1979) ................................................. 28, 29

Cannon v. Univ. of Chi.,

441 U.S. 677 (1979) ....................................................... 19

Cape v. Tenn. Secondary Sch. Athletic

Ass’n,

563 F.2d 793 (6th Cir. 1977) ................................... 22, 32

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) ....................................................... 29

Clark ex rel. Clark v. Ariz. Interscholastic

Ass’n,

695 F.2d 1126 (9th Cir. 1982) ............................. 4, 29, 32

Clark ex rel. Clark v. Ariz. Interscholastic

Ass’n,

886 F.2d 1191 (9th Cir. 1989) ....................................... 14

Cohen v. Brown Univ.,

101 F.3d 155 (1st Cir. 1996) ............................. 22, 23, 32

Craig v. Boren,

429 U.S. 190 (1976) ................................................. 29, 30

D.N. ex rel. Jessica N. v. DeSantis,

No. 21-cv-61344, 2023 WL 7323078

(S.D. Fla. Nov. 6, 2023) ................................................ 31

Davis ex rel. LaShonda D. v. Monroe Cnty.

Bd. of Educ.,

526 U.S. 629 (1999) ....................................................... 22

TABLE OF AUTHORITIES

(continued)

Page(s)

Doe 2 v. Shanahan,

917 F.3d 694 (D.C. Cir. 2019) ...................................... 27

Doe v. Horne,

683 F. Supp. 3d 950 (D. Ariz. 2023)............................. 15

Doe v. United States,

419 F.3d 1058 (9th Cir. 2005) ....................................... 30

Druley v. Patton,

601 F. App’x 632 (10th Cir. 2015) ................................ 26

Fla. Bar v. Went For It, Inc.,

515 U.S. 618 (1995) ......................................................... 7

Frontiero v. Richardson,

411 U.S. 677 (1973) ........................................... 19, 21, 28

Golden Glow Tanning Salon, Inc. v. City

of Columbus,

52 F.4th 974 (5th Cir. 2022) ......................................... 33

Griffin Indus., Inc. v. Irvin,

496 F.3d 1189 (11th Cir. 2007) ..................................... 33

Grimm v. Gloucester Cnty. Sch. Bd.,

972 F.3d 586 (4th Cir. 2020) ................................... 25, 26

Grove City Coll. v. Bell,

465 U.S. 555 (1984) ....................................................... 16

Gundy v. United States,

588 U.S. 128 (2019) ....................................................... 19

Harley v. Wilkinson,

988 F.3d 766 (4th Cir. 2021) ......................................... 30

TABLE OF AUTHORITIES

(continued)

Page(s)

Hecox v. Little,

79 F.4th 1009 (9th Cir. 2023) ................................. 26, 27

Hecox v. Little,

No. 20-35813, 2023 WL 11804896

(9th Cir. Aug. 17, 2023) ................................................ 16

Jackson v. Birmingham Bd. of Educ.,

544 U.S. 167 (2005) ................................................. 21, 24

Kansas v. Dep’t of Educ.,

No. 24-4041-JWB (D. Kan. July 2, 2024) ............. 15, 24

Kelley v. Bd. of Trs.,

35 F.3d 265 (7th Cir. 1994) ........................................... 23

Kleczek v. R.I. Interscholastic League,

Inc.,

612 A.2d 734 (R.I. 1992) ............................................... 32

L.W. ex rel. Williams v. Skrmetti,

83 F.4th 460 (6th Cir. 2023) ................................... 21, 25

Louisiana v. Dep’t of Educ.,

No. 3:24-cv-00563, 2024 WL 2978786

(W.D. La. June 13, 2024) .................................... 5, 15, 20

Maine v. Taylor,

477 U.S. 131 (1986) ....................................................... 17

Mansourian v. Regents of Univ. of Cal.,

602 F.3d 957 (9th Cir. 2010) ......................................... 23

McCormick ex rel. McCormick v. Sch. Dist.

of Mamaroneck,

370 F.3d 275 (2d Cir. 2004) .......................................... 19

XII

TABLE OF AUTHORITIES

(continued)

Page(s)

Meriwether v. Hartop,

992 F.3d 492 (6th Cir. 2021) ................................... 21, 22

Michael M. v. Super. Ct. of Sonoma Cnty.,

450 U.S. 464 (1981) ....................................................... 31

Miss. Univ. for Women v. Hogan,

458 U.S. 718 (1982) ....................................................... 30

In re Mularadelis v. Haldane Cent. Sch.

Bd.,

74 A.D.2d 248 (N.Y. App. Div. 1980)........................... 32

N. Haven Bd. of Educ. v. Bell,

456 U.S. 512 (1982) ....................................................... 23

Neal v. Bd. of Trs. of Cal. State Univs.,

198 F.3d 763 (9th Cir. 1999) ........................................... 5

Neese v. Becerra,

640 F. Supp. 3d 668 (N.D. Tex. 2022) ......................... 20

O’Connor v. Bd. of Ed. of Sch. Dist. 23,

449 U.S. 1301 (1980) ..................................................... 32

Pederson v. La. State Univ.,

213 F.3d 858 (5th Cir. 2000) ..................................... 5, 23

Pelcha v. MW Bancorp, Inc.,

988 F.3d 318 (6th Cir. 2021) ......................................... 21

Pennhurst State Sch. & Hosp. v.

Halderman,

451 U.S. 1 (1981) ........................................................... 24

Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979) ....................................................... 28

XIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Petrie v. Ill. High Sch. Ass’n,

394 N.E.2d 855 (Ill. 1979) ...................................... 31, 32

Pharm. Rsch. & Mfrs. of Am. v. Walsh,

538 U.S. 644 (2003) ....................................................... 16

Reinebold v. Bruce,

18 F.4th 922 (7th Cir. 2021) ......................................... 33

Ricci v. DeStefano,

557 U.S. 557 (2009) ....................................................... 28

Rinaldi v. Yeager,

384 U.S. 305 (1966) ....................................................... 31

Sackett v. EPA,

598 U.S. 651 (2023) ....................................................... 16

Soule v. Conn. Assoc. of Schs. Inc.,

90 F.4th 34 (2d Cir. 2023)............................................. 27

Tennessee v. Cardona,

No. 24-072, 2024 WL 3019146

(E.D. Ky. June 17, 2024) .............................................. 15

Tennessee v. Dep’t of Educ.,

104 F.4th 577 (6th Cir. 2024) ....................................... 15

Texas v. Cardona,

No. 4:23-cv-00604, 2024 WL 2947022

(N.D. Tex. June 11, 2024) ............................................ 31

Tuan Anh Nguyen v. INS,

533 U.S. 53 (2001) ......................................... 5, 29, 30, 31

Turner Broad. Sys. v. FCC,

520 U.S. 180 (1997) ....................................................... 33

XIV

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Donovan,

429 U.S. 413 (1977) ....................................................... 15

United States v. Edge Broad. Co.,

509 U.S. 418 (1993) ....................................................... 29

United States v. Virginia,

518 U.S. 515 (1996) ....................................... 3, 25, 30, 31

Ward v. Rock Against Racism,

491 U.S. 781 (1989) ....................................................... 29

Weinberger v. Wiesenfeld,

420 U.S. 636 (1975) ....................................................... 31

West Virginia v. EPA,

597 U.S. 697 (2022) ....................................................... 18

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ....................................................... 19

Williams v. Sch. Dist. of Bethlehem,

998 F.2d 168 (3d Cir. 1993) ................................ 4, 20, 24

Wisconsin v. Yoder,

406 U.S. 205 (1972) ....................................................... 24

Yates v. United States,

574 U.S. 528 (2015) ................................................. 20, 21

Yellow Springs Exempted Vill. Sch. Dist.

Bd. of Ed. v. Ohio High Sch. Athletic

Ass’n,

647 F.2d 651 (6th Cir. 1981) ........................................... 4

TABLE OF AUTHORITIES

(continued)

Page(s)

Constitutional Provisions

U.S. CONST. amend. XIV, § 1 .............................................. 4

Statutes

20 U.S.C. § 1681 .................................................. 5, 18, 19, 20

20 U.S.C. § 1686 .............................................................. 5, 20

28 U.S.C. § 1254 .................................................................... 4

28 U.S.C. § 1291 .................................................................... 4

28 U.S.C. § 1331 .................................................................... 4

Pub. L. No. 93-380, 88 Stat. 484, 612 (1974)..................... 23

W. VA. CODE § 18-2-25d ......................................... 1, 4, 7, 28

Regulation

34 C.F.R. § 106.41 ..................................................... 5, 23, 25

Other Authorities

118 CONG. REC. 5808 (1972)............................................... 20

Amanda Wallace,

Transgender Swimmer at Ramapo

College Faces More Criticism After

Breaking School Record,

NORTHJERSEY.COM

(Feb. 20, 2024, 12:31 PM ET) ........................................ 8

XVI

TABLE OF AUTHORITIES

(continued)

Page(s)

Brad McElhinny,

Middle school athletes step out of shot

put against transgender girl who just

won court case, METRONEWS

(Apr. 19, 2024, 2:37 PM) ............................................... 11

Fast Facts: Title IX, NAT’L CTR. FOR

EDUC. STAT. (last visited July 8, 2024) ......................... 5

Greg Johnson,

Thomas Concludes Spectacular Season

with National Title, PENN TODAY

(Mar. 20, 2022) ................................................................ 8

Katherine Knott,

Report: Title IX Rule on Trans

Athletes Delayed Until After Election,

INSIDE HIGHER ED (Mar. 29, 2024), ............................. 8

Katie Barnes,

Penn Swimmer Lia Thomas Leaves

Ivy League Meet a Four-Time

Champion, But Questions Remain,

ESPN (Feb. 20, 2022, 2:00 PM ET) ............................. 8

Quick Facts about Title IX and Athletics,

NAT’L WOMEN’S L. CTR. (June 21, 2022) ..................... 5

Sonia Twigg,

The Sports Where Trans Athletes Are

Banned Or Need Permission to

Compete,

THE INDEPENDENT (U.K.)

(Apr. 16, 2024, 9:02 BST) ............................................... 8

XVII

TABLE OF AUTHORITIES

(continued)

Page(s)

States Act to Protect Women’s Sports,

CONCERNED WOMEN FOR AMERICA,

LEGISLATIVE ACTION COMMITTEE

(last visited July 9, 2024).............................................. 16

Transgender Track Star Stirs Controversy

Competing In Alaska’s Girls’ State

Meet Championships,

CBSNEWS.COM (June 8, 2016) ...................................... 6

Valerie Richardson,

Another Winning Transgender Athlete

Lands Connecticut’s Policy on Hot

Seat,

WASH. TIMES (Mar. 19, 2024) ........................................ 6

Valerie Richardson,

Girls Left In Dust As Male-Born

Transgender Athletes Take State Track

Titles In Five States,

WASH. TIMES (June 16, 2024) ........................................ 8

INTRODUCTION

Schools have long separated sports into boys’ and girls’

teams. Drawing this line guaranteed that women and girls

had a real chance to compete safely and fairly. Important

laws like Title IX of the Education Amendments of 1972

then ensured that boys’ and girls’ sports teams received

equal support. Women’s sports flourished.

More recently, though, the lines have begun to blur.

Biological males identifying as female have increasingly

competed against females in women’s sports. Female

athletes have been demoralized, as they have been pushed

further down the competitive ladder, out of tournaments,

and off their teams. Female athletes have also suffered

injuries when facing bigger, stronger males. Sporting

organizations like the National Association of

Intercollegiate Athletics, World Athletics, and others

have responded by adopting policies that ensure athletes

are placed on teams and in events based on sex, not gender

identity.

Seeing these same problems, the West Virginia

Legislature reaffirmed that biological differences drive

the distinction between boys’ and girls’ sports, just as two

dozen other States have done. West Virginia’s Save

Women’s Sports Act provides that girls’ sports teams

based on “competitive skill” or “involv[ing] … a contact

sport” should not be open to biological males, tracking

Title IX’s implementing regulations. W. VA. CODE § 18-225d(c)(2). Male students may play on male or co-ed teams.

Id. § 18-2-25d(c)(3). Female students may play on all

teams. Id. “Male” and “female” are defined by looking to

biology—the student’s “reproductive biology and genetics

at birth.” Id. § 18-2-25d(b). Gender identity plays no role.

Id. § 18-2-25d(a)(4).

A divided Fourth Circuit panel thought these

provisions were nefarious. In the majority’s mistaken

view, the law’s “sole purpose” was to target “transgender

girls.” App.13a. The majority concluded the Act violates

Title IX—and perhaps the Fourteenth Amendment’s

Equal Protection Clause—by preventing Respondent

B.P.J., a biological male who identifies as female, from

competing on girls’ sports teams. The majority reversed

the judgment in the defendants’ favor on the Title IX claim

while vacating and remanding the judgment in the

defendants’ favor on equal-protection grounds.

The majority conceded the State was entitled to draw

the line between male and female sports somewhere.

App.26a. But rather than using sex, the majority

preferred an indeterminate mix of subjective factors such

as how long a given student has “publicly liv[ed] as a girl,”

whether the student has a different name or notation on a

birth certificate, whether the student has taken “puberty

block[ers],” how long the student has participated on girls’

teams,

and

the

student’s

“outward

physical

characteristics,” including “fat distribution, pelvic shape,

and bone size.” App.40a.

The majority’s holding upends the Title IX and equalprotection frameworks. It tacitly overturns countless

cases upholding sex distinctions for bathrooms, prisons,

physical-fitness tests, and more. It rewrites Title IX, a law

designed to protect female athletes, into one that

subordinates their interests to those of certain males. It

dispenses with any meaningful effort to determine how

males are similarly situated to females when it comes to

sports. (They’re not.) And it renders sex-separated

sports an illusion. Schools will need to separate sports

teams based on self-identification and personal choices

that have nothing to do with athletic performance. The

Fourth Circuit’s decision will produce a “commingling of

the biological sexes in the female athletics arena” that will

“significantly undermine the benefits” that separate

sports teams “afford[] to female student athletes.” Adams

ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791,

819 (11th Cir. 2022) (en banc) (Lagoa, J., specially

concurring).

This Court should set things right. The Fourth

Circuit’s splintered decision casts into doubt similar laws

in at least 24 other States, sows confusion about antidiscrimination law, ignores scientific evidence, and

renders school sports an un-administrable morass. In the

end, the decision all but declares that any law recognizing

differences between sexes is unlawful whenever that law

runs counter to someone’s “gender identity.” Yet

“[i]nherent differences between men and women …

remain cause for celebration,” not condemnation. United

States v. Virginia, 518 U.S. 515, 533 (1996) (“VMI”).

In dissent below, Judge Agee raised a “hope that …

[this] Court [would] take the opportunity with all

deliberate speed to resolve these questions of national

importance.” App.74a. Two Justices of this Court

recognized a year ago that this case “concerns an

important issue that this Court [would] likely … be

required to address in the near future.” App.97a. The

time to tackle these questions has come. The Court should

grant the Petition.

OPINIONS BELOW

The Fourth Circuit’s opinion (App.1a-74a) is reported

at 98 F.4th 542. The district court’s opinion (App.75a-96a)

is reported at 649 F. Supp. 3d 220.

JURISDICTION

The Fourth Circuit entered judgment on April 16,

2024. Petitioners timely filed this petition for certiorari on

July 11, 2024. Lower courts had jurisdiction under 28

U.S.C. § 1331 and 28 U.S.C. § 1291. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Equal Protection Clause of the U.S. Constitution’s

Fourteenth Amendment provides no State may “deny to

any person within its jurisdiction the equal protection of

the laws.” U.S. CONST. amend. XIV, § 1.

The relevant provisions of Title IX and Title IX’s

implementing regulations are reproduced at App.103a108a.

West Virginia Code § 18-2-25d appears at App.99a102a.

STATEMENT

1. Schools have long separated sports teams by sex.

See Yellow Springs Exempted Vill. Sch. Dist. Bd. of Ed.

v. Ohio High Sch. Athletic Ass’n, 647 F.2d 651, 670 (6th

Cir. 1981). Sex-separated sports teams reflect biological

differences between males and females and ensure

athletic opportunities for women. See Clark ex rel. Clark

v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th

Cir. 1982) (Clark I). With sex-separated sports, women

have a chance to compete while not risking their safety

against physiologically different competitors.

Trouble was, women often had fewer athletic

opportunities than men. Williams v. Sch. Dist. of

Bethlehem, 998 F.2d 168, 175 (3d Cir. 1993). So Congress

passed Title IX, prohibiting discrimination “on the basis

of sex” in federally funded educational programs, 20

U.S.C. § 1681(a), including student athletics, 34 C.F.R.

§ 106.41. But because men and women have significant

physiological differences, Tuan Anh Nguyen v. INS, 533

U.S. 53, 73 (2001); Neal v. Bd. of Trs. of Cal. State Univs.,

198 F.3d 763, 772 n.8 (9th Cir. 1999), Title IX and its

implementing regulations continued to allow sex-specific

athletic teams for contact sports or where selection is

“based upon competitive skill,” 34 C.F.R. § 106.41(b).

Indeed, Congress acknowledged differences between the

sexes throughout Title IX. See 20 U.S.C. § 1681(a)(6)

(contemplating single-sex social organizations); id. § 1686

(“maintaining separate living facilities for the different

sexes”).

Fifty years later, Title IX has “had stellar results.”

Louisiana v. Dep’t of Educ., No. 3:24-cv-00563, 2024 WL

2978786, at *4 (W.D. La. June 13, 2024). For high-school

sports, girls’ participation rates are up eleven-fold. See

Fast Facts: Title IX, NAT’L CTR. FOR EDUC. STAT.,

https://bit.ly/3MIAeiC (last visited July 8, 2024). And

nearly half of college athletes are now women, up from

16% before Title IX leveled the playing field. Quick Facts

about Title IX and Athletics, NAT’L WOMEN’S L. CTR.

(June 21, 2022), https://bit.ly/41eUaxC. In short, time has

shown “the provisions of Title IX and its attendant

regulations are not merely hortatory” but have instead

“sculpt[ed] the relevant playing field.” Pederson v. La.

State Univ., 213 F.3d 858, 880 (5th Cir. 2000).

2. Yet more recently, Title IX’s promise of equal

opportunity for women and girls began breaking down, as

men and boys identifying as women and girls have

increasingly been competing in women’s sports—and

winning. Women have been pushed out of podium spots,

championship bids, and other chances at fair competition.

Take what happened in Connecticut. In just a few

years, two males competing as women broke 17 women’s

track records, took 15 women’s track championship titles,

and deprived girls of more than 85 opportunities to

compete at higher levels. See Appl. to Vacate Inj. at 5,

West Virginia v. B.P.J., No. 22A800 (Mar. 9, 2023)

(“Appl.”). The losses were “demoralizing,” and the girls

felt defeated before they even began. Id. Things haven’t

improved in Connecticut since then; a male identifying as

female won the high jump in the New England Track &

Field Championship last season. See Valerie Richardson,

Another Winning Transgender Athlete Lands

Connecticut’s Policy on Hot Seat, WASH. TIMES (Mar. 19,

2024), https://bit.ly/3zj4iwY.

Connecticut is no aberration. In 2018, for instance, a

college athlete who had competed on Franklin Pierce

University’s men’s track team competed on the women’s

team.

Appl.6.

Despite never qualifying for a

championship event while competing with men, the

student won an NCAA championship in the women’s 400meter hurdles after the switch. Id. The next year, another

student competed for the University of Montana’s

women’s cross country and track teams after competing

for three years on the men’s teams. Id. The athlete then

won the women’s mile at the 2020 Big Sky Championship.

Id.

For female competitors, the experience was

“deflating,” discouraging, and defeating. Id.; see also, e.g.,

Transgender Track Star Stirs Controversy Competing In

Alaska’s

Girls’

State

Meet

Championships,

CBSNEWS.COM (June 8, 2016), https://perma.cc/M8KREHBG (describing similar feelings from female

competitor).

3. Schools in West Virginia have long designated

athletic teams based on sex to ensure opportunities for

females. See W. VA. CODE § 18-2-25d(a)(3). But the

stories of defeat and displacement by males worried the

West Virginia Legislature. So relying on these “studies

and anecdotes pertaining to different locales,” Fla. Bar v.

Went For It, Inc., 515 U.S. 618, 628 (1995), state

lawmakers passed the Sports Act to reaffirm that girls’

sports are for girls. The Act recognizes “inherent

differences” between males and females “are a valid

justification for sex-based classifications” to “promote equal

athletic opportunities for the female sex.” W. VA. CODE §

18-2-25d(a)(2), (5). It then ensures males cannot compete

against females in contact or competitive “sports

designated

for

females,

women,

girls.”

Id. § 18-2-25d(c)(2). And it draws the line by looking to

biology—“an individual’s physical form as a male or

female based solely on the individual’s reproductive

biology and genetics at birth.” Id. § 18-2-25d(b)(1).

Consistent with the goal of protecting equality in girls’

sports—and in line with the idea that girls sometimes

played on boys’ teams before the Act—the Act restricts no

one from trying out for men’s, boys’, or co-ed teams. W.

VA. CODE § 18-2-25d(c)(3). In other words, females—no

matter how they identify—can play on boys’ teams

(because they do not possess a physical advantage).

Males—no matter how they identify—can play men’s

sports. And the Act addresses only sports separation, so

biological males can still identify however they want. It is

only when students are playing skill and contact sports—

where biological sex has a direct effect—that biological

males (again, however they might identify) cannot compete

with females.

The West Virginia Legislature was not alone in acting

as it did: 25 States have implemented laws or regulations

to protect girls’ sports in much the same way. Katherine

Knott, Report: Title IX Rule on Trans Athletes Delayed

Until After Election, INSIDE HIGHER ED (Mar. 29, 2024),

https://bit.ly/4eYfsaL.

Similar laws are under

consideration elsewhere. These laws reflect the realities

of interscholastic sports today. They also mirror the

actions of major sports organizations here and abroad,

many of which have limited or barred biological males

from competing in women’s sports. See Sonia Twigg, The

Sports Where Trans Athletes Are Banned Or Need

Permission to Compete, THE INDEPENDENT (U.K.) (Apr.

16, 2024, 9:02 BST), https://bit.ly/45X3VUU.

Time has confirmed West Virginia was right to act.

Consider a biological male swimmer on the University of

Pennsylvania women’s swim team who set several records

and became an NCAA champion. Katie Barnes, Penn

Swimmer Lia Thomas Leaves Ivy League Meet a FourTime Champion, But Questions Remain, ESPN (Feb. 20,

2022, 2:00 PM ET), https://es.pn/3zNFXML; Greg

Johnson, Thomas Concludes Spectacular Season with

National Title, PENN TODAY (Mar. 20, 2022),

https://bit.ly/41lYqvh. Or witness how “[f]ive biological

males who identify as female won girls’ state scholastic

titles at outdoor-season spring meets in Connecticut, New

Hampshire, Maine, Oregon and Washington.” Valerie

Richardson, Girls Left In Dust As Male-Born

Transgender Athletes Take State Track Titles In Five

States,

WASH.

TIMES

(June

16,

2024),

https://bit.ly/3XAL8N6. And a swimmer who competed

for three unsuccessful years on the Ramapo College men’s

team recently switched to the women’s team and set new

records. See Amanda Wallace, Transgender Swimmer at

Ramapo College Faces More Criticism After Breaking

School Record, NORTHJERSEY.COM (Feb. 20, 2024, 12:31

PM ET), https://bit.ly/4cdolLI. Thus, competitive fairness

for girls remains a real problem.

4. Yet the West Virginia Legislature’s effort to

address this problem was blocked. Before the law took

effect, B.P.J., a then-11-year-old biological male who

identifies as female, sued. App.15a. B.P.J. agrees sexseparated sports are unobjectionable in theory but

disagrees with assigning biological males to boys’ teams.

B.P.J. argued the law’s biology-based distinction violates

Title IX and the Constitution’s Equal Protection Clause.

App.79a. The district court preliminarily enjoined the Act

based on an early and incomplete record. App.79a. And

while that injunction was in effect, B.P.J. competed on the

girls’ cross country and track-and-field teams, routinely

defeating and displacing female athletes. See Stay

Response App. at 1729-1746, B.P.J. v. West Virginia State

Bd. of Educ., No. 23-1078 (4th Cir. filed Feb. 7, 2023), ECF

No. 48-2. Meanwhile, the parties engaged in extensive

discovery, including voluminous expert testimony.

Discovery changed things.

Thousands of pages of evidence confirmed that biology

affects athletic performance. Although B.P.J. argued

“individual circumstances” should control because B.P.J. is

on hormone-impacting drugs, scientists disagree on

“whether and to what extent” taking such drugs reduce

male physiological advantages. App.92a. Petitioners

submitted evidence the advantage remained, drugs or no

drugs. It also became even more obvious what B.P.J.

thought should be the determining factor for separating

sports teams: gender identity, not sex. B.P.J., after all, had

no interest in seeing “boys [with] lower circulating

testosterone levels” competing on girls’ teams. App.92a93a. Instead, B.P.J. thought moving boys to girls’ teams

was necessary “the moment [students] verbalize their

transgender status.” App.93a. Yet even B.P.J.’s expert

agreed that “gender identity … is not a useful indicator of

athletic performance.” Appl.App.214a.

So after reviewing the record over seven months, the

district court entered summary judgment for the State

and other defendants. The district court found no genuine

dispute that biological males have physiological

advantages over biological females. App.90a-93a. These

“inherent” advantages—at least partly admitted by

B.P.J.—mean that “biological males … are not similarly

situated to biological females” in sports. App.91a, 95a.

The court rejected B.P.J.’s argument that B.P.J.’s

individual circumstances should decide things. App.92a95a. “[A] transgender girl is biologically male and,

barring medical intervention, would undergo male

puberty like other biological males.” App.92a. The State’s

substantial interest holds even though a male—whether

due to naturally low testosterone or intervention—might

lack typical testosterone levels. App.91a-93a. The trial

court declared the Sports Act constitutional, dissolved its

prior injunction, and entered judgment for the

defendants.

B.P.J. appealed and immediately asked the Fourth

Circuit to reinstate an injunction against the Sports Act.

After B.P.J. insisted “no one w[ould] be harmed,” Mot. for

Stay at 14, B.P.J. v. W. Va. State Bd. of Educ., No. 23-1078

(4th Cir. filed Feb. 7, 2023), ECF No. 34-1, a divided panel

issued an injunction. App.43a, 74a. Over Justice Thomas

and Justice Alito’s dissent, this Court denied West

Virginia’s request to vacate that injunction. App.97a-98a.

B.P.J. was thus permitted to compete in the girls’

spring 2023 track-and-field season—displacing “at least

one hundred girls” in the standings and bumping two girls

from the conference championships. Order Denying Mot.

to Suspend at 6-7, B.P.J. v. W. Va. State Bd. of Educ., No.

23-1078 (4th Cir. Aug. 4, 2023), ECF No. 169 (Agee, J.,

dissenting). One of the girls on B.P.J.’s team—A.C.—

recounted how she usually beat B.P.J. (two years her

junior) in shot put and discus previously. See A.C. Decl.

at 4-7, Tennessee v. Cardona, No. 2:24-cv-00072 (E.D. Ky.

filed May 3, 2024), ECF No. 21-5 (“A.C. Decl.”). But in

2023, B.P.J. rapidly improved, knocking A.C. out of the

championship meet and making her feel “unheard and

unseen.” Id. at 5. Even her coach admitted what had

happened was “unfair.” Id. at 6.

Despite these

increasingly worrisome facts, the same Fourth Circuit

majority again refused to lift the injunction ahead of the

2023 fall season.

Things went from bad to worse. This spring, B.P.J.

placed top three in every track event B.P.J. competed in,

winning most. B.P.J. beat over 100 girls, displacing them

over 250 times while denying multiple girls spots and

medals in the conference championship. A.C. Decl. 7 &

Ex. B. In response, five girls refused to compete against

B.P.J. See Brad McElhinny, Middle school athletes step

out of shot put against transgender girl who just won

court case, METRONEWS (Apr. 19, 2024, 2:37 PM),

https://bit.ly/3XUs6RK. B.P.J. won the shot put by more

than three feet while placing second in discus. Id. B.P.J.

also took two of the limited spots in the conference

championships. In all, B.P.J. has displaced 283 girls some

704 times. See Rouleau Decl. 2-3, Tennessee v. Cardona,

No. 2:24-cv-00072 (E.D. Ky. May 16, 2024), ECF No. 63-2.

Meanwhile, A.C. reports that female athletes have been

subjected to “offensive and inappropriate sexual

comments” in the locker room from their now teammate,

B.P.J. A.C. Decl. 9-11.

5. Eventually, the same Fourth Circuit majority

would rule against the State for a third time.

The Court first reversed and remanded B.P.J.’s equalprotection claim. Though the majority applied intermediate scrutiny, and though B.P.J. accepted that sexspecific sports are allowed, App.23a-24a, the majority said

the Act facially classified “based on gender identity”

because it does not define “female” to include biological

males who identify as female and designates only girls for

“girls[’] sports teams,” App.24a. The majority also said

the Act discriminates by allowing girls to play on all teams

while designating males to boys’ or co-ed teams. App.26a.

It then held that Petitioners must defend the Act as

applied to B.P.J.’s particular circumstances, defining the

relevant comparator as a female who has not “undergo[ne]

Tanner 2 stage puberty” participating in girls’ crosscountry. App.31a, 34a. After setting these rules, the

majority remanded the claim because it found a dispute

over whether certain males “enjoy a meaningful

competitive athletic advantage over cisgender girls.”

App.34a.

As for Title IX, the majority reversed the trial court

and ruled for B.P.J., believing the Act treated B.P.J.

worse than similarly situated individuals and deprived

B.P.J. “of any meaningful athletic opportunities.”

App.43a. No number of male advantages could convince

the majority that the Act satisfies Title IX—they thought

that irrelevant. App.39a. Instead, the majority held that

by designating sex-specific sports and ensuring equal

opportunities for female athletes, the Act discriminates

based on gender identity. App.39a-40a. It also said that

the Act discriminates by allowing girls to play on all teams

while assigning males to boys’ or co-ed teams. App.33a34a, 39a. And despite acknowledging that the Act would

allow B.P.J. to compete on male teams, the majority found

the Act left B.P.J. with “no real choice,” “effectively

excluding” B.P.J. from competing “in all non-coed sports.”

App.41a (cleaned up).

6. Judge Agee dissented. He explained that “West

Virginia may separate its sports teams by biological sex

without running afoul of either the Equal Protection

Clause or Title IX.” App.44a. By holding otherwise, the

majority, “inappropriately expand[ed] the scope of the

Equal Protection Clause and upend[ed] the essence of

Title IX.” App.44a.

On the equal-protection claim, Judge Agee said B.P.J.

failed to show that similarly situated persons received

different treatment. “[I]t is beyond dispute that biological

sex is relevant to sports,” he wrote, “and therefore that

the person who is ‘in all relevant respects alike’ to [B.P.J.]

is a biological boy.” App.48a. The Act also does not

“facially discriminate based on transgender status.”

App.51a. The Act satisfies even heightened scrutiny,

Judge Agee said, because “biological differences affect

typical outcomes in sports.” App.53a. B.P.J.’s success in

sports—“displac[ing] at least one hundred biological girls

at track-and-field events and push[ing] multiple girls out

of the top ten”—proved that. App.55a.

Judge Agee rejected B.P.J.’s Title IX claim for similar

reasons. But he noted that the majority’s Title IX error

“has even further-reaching and destructive implications”

than its defective equal-protection analysis because “Title

IX does not require a justification inquiry.” App.57a.

Allowing biological boys to participate “in biological girls’

sports turns Title IX on its head and reverses the

monumental work Title IX has done to promote girls’

sports from its inception.” App.58a. The ruling below, he

warns, “will drive many biological girls out of sports and

eviscerate the very purpose of Title IX.” App.59a.

REASONS FOR GRANTING THE PETITION

The decision below took on an exceptionally important

issue—and got most every step exceptionally wrong. On

the equal-protection claim, the majority embraced a

controversial view of “gender identity discrimination,”

rewrote the test for challenging a law under intermediate

scrutiny, and dispensed with any need to show a similarly

situated comparator. It then moved on to Title IX, making

more striking mistakes. There, it took a law designed to

ensure meaningful competitive opportunities for women

and girls—based on biological differences—and fashioned

it into a lever for males to force their way onto girls’ sports

teams based on identity, destroying the very opportunities

Title IX was meant to protect.

Last term, two Justices said it would be appropriate for

the Court to get involved at the emergency-relief stage.

The case for the Court’s involvement now is even more

compelling. The Fourth Circuit has set out its fractured

analysis. And so long as this decision stands, 25 state laws

on these issues are in doubt. That doubt irreparably

damages safe and fair athletic competition. As each sports

season comes and goes, more girls will lose the benefits of

safe and fair play. But those girls shouldn’t have to wait.

“If males are permitted to displace females … even to the

extent of one player …, the goal of equal participation by

females in interscholastic athletics is set back, not

advanced.” Clark ex rel. Clark v. Ariz. Interscholastic

Ass’n, 886 F.2d 1191, 1193 (9th Cir. 1989). The Court

should grant review to ensure that women’s sports are

preserved and protected.

This Case Is An Ideal Vehicle To Address Vital

Questions Of Federal Law.

This case presents two key questions. Either would

call for the Court’s involvement—the combination of both

nearly demands it.

The first is how to interpret “a major federal statute.”

United States v. Donovan, 429 U.S. 413, 422 (1977). For

over 50 years, Title IX has ensured that women and girls

have equal athletic opportunities. This promise has been

a lifeline to countless women and girls. It ensures they

can compete on equal footing, enjoy opportunities once

exclusive to men, and fulfill childhood dreams. And as part

of that effort, “existing Title IX regulations” have allowed

“athletics programs” to “solely use[] biological sex as a

classification method for decades.” Tennessee v. Dep’t of

Educ., 104 F.4th 577, 611 (6th Cir. 2024). Yet the ruling

below threatens Title IX’s promise. Consider that the

court of appeals’ injunction allowed one biological male,

over one track and field season, to displace over 100 girls

and prevent two girls from advancing to a championship.

If the ruling below stands, and Title IX is rewritten,

then this harm will spread, and women’s sports will never

be the same. The reasoning below has already taken hold

elsewhere. See, e.g., Doe v. Horne, 683 F. Supp. 3d 950,

975-76 (D. Ariz. 2023) (holding law like West Virginia’s

likely violated Title IX). And it will likely continue to

spread, especially now that the current administration has

promulgated a regulation—albeit one that has since been

enjoined many places—that embraces a view like the

majority’s below. See generally Tennessee v. Cardona,

No. 24-072, 2024 WL 3019146, at *1 (E.D. Ky. June 17,

2024) (enjoining new Title IX rule that purports to

redefine “sex” to include “gender identity”); Louisiana,

2024 WL 2978786, at *2 (same); Kansas v. Dep’t of Educ.,

No. 24-4041-JWB (D. Kan. July 2, 2024) (same). The

Court has stepped in before when muddled cases and a

new (enjoined) regulation have left things in a confused

state of play. E.g., Sackett v. EPA, 598 U.S. 651, 679

(2023); see also Grove City Coll. v. Bell, 465 U.S. 555, 603

(1984) (Brennan, J., concurring in part) (“The

interpretation of statutes as important as Title IX should

not be subjected so easily to shifts in policy by the

executive branch.”). Now is the time to step in here, too,

and protect women and girls.

Second, this case presents a nationally important

constitutional question about sports laws. See Pharm.

Rsch. & Mfrs. of Am. v. Walsh, 538 U.S. 644, 650 (2003).

Twenty-five states have laws protecting fairness in

women’s sports. States Act to Protect Women’s Sports,

CONCERNED WOMEN FOR AMERICA, LEGISLATIVE

ACTION COMMITTEE, https://bit.ly/3zCv9nJ (last visited

July 9, 2024). These laws require only what Title IX has

historically allowed. Yet the ruling below says such a law

violates equal protection. If that decision stands, and its

logic spreads, States will be unable to protect fairness in

women’s sports. Unfortunately, that’s already happening.

See, e.g., Hecox v. Little, No. 20-35813, 2023 WL 11804896,

at *6-18 (9th Cir. Aug. 17, 2023), as amended June 7, 2024.

This threat requires immediate review. Walsh, 538 U.S.

at 650.

This case is also an ideal vehicle to answer those vital

questions.* To begin, the record is sufficiently developed,

Additionally, this case presents the question of whether, and, if so,

to what extent, a county school board and its superintendent may be

held liable for enforcing a challenged state law. While this issue is not

a separate question presented, the Harrison County Board of

Education and Ms. Stutler would address it in merits briefing unless

the Court says otherwise. In any event, the Board and Ms. Stutler do

as shown by the unusual events below. Recall how the

district court preliminarily enjoined the Act. But after

months of record building, producing over 3,000 pages of

testimony and expert reports, both sides moved for

summary judgment, and the district court reversed

itself—dissolving its prior injunction and entering

judgment for Petitioners. Although the circuit court

reversed that well-reasoned decision, it entered judgment

for B.P.J. on Title IX, showing the dispute is a legal one.

And ultimately, one can’t lose sight of the on-the-ground

realities this case involves.

Millions of girls play

interscholastic sports. States need clarity, especially

considering how States “clearly” have an “interest in the

continued enforceability of [their] own statutes.” Maine

v. Taylor, 477 U.S. 131, 137 (1986). Now is the time to offer

that clarity, and this case presents a chance to protect

basic fairness for women and girls.

This Court’s recent grant of the petition in United

States v. Skrmetti, No. 23-477, will not resolve the circuit

splits and confusion that undergird this case. Most

obviously, Skrmetti did not address the Title IX question

that the Fourth Circuit resolved against West Virginia.

As for the Equal Protection analysis, the level of scrutiny,

the importance of a state’s interest, and the relative “fit”

between that interest and the state’s solution are different

in the context of saving women’s sports versus protecting

children from experimental and harmful medical

interventions. So lower courts and States will still require

more guidance after Skrmetti.

not waive this issue, which they properly raised and preserved below.

See, e.g., App.19a-20a.

II.

The Title-IX Question Warrants Review.

The Fourth Circuit’s Title IX analysis is egregiously

wrong. In ruling for B.P.J., the Fourth Circuit turned a

statute enacted to protect women on its head and

exacerbated a multi-circuit split.

In the Fourth Circuit, females must now compete

against biological males—and all the physiological

advantages they possess—in all athletic events. This

“commingling of the biological sexes in the female

athletics arena w[ill] significantly undermine the benefits”

that separate sports teams “afford[-] to female student

athletes.” Adams, 57 F.4th at 819 (Lagoa, J., specially

concurring). Where Title IX originally heralded a “virtual

revolution for girls and women in sports,” the Fourth

Circuit’s opinion precipitates a counterrevolution. Id. at

818 (cleaned up). Given the importance of equality in

women’s sports, this Court should grant certiorari and

stop this regression.

The circuits are split over whether school

policies that divide the sexes based on

biological differences violate Title IX.

Title IX prohibits “discrimination” in educational

programs “on the basis of sex.” 20 U.S.C. § 1681(a). This

Court interprets these “key statutory terms” “in accord

with the ordinary public meaning of [those] terms at the

time of [Title IX’s] enactment.” Bostock v. Clayton Cnty.,

590 U.S. 644, 654-55 (2020). Each word “must be read in

[its] context and with a view to [its] place in the overall

statutory scheme.” West Virginia v. EPA, 597 U.S. 697,

721 (2022). Courts must not “add to, remodel, update, or

detract from old statutory terms” to fit their “own

imaginations,” Bostock, 590 U.S. at 654-55, or to “better

reflect the current values of society,” id. at 685 (Alito, J.,

dissenting).

Though Title IX does not define sex, its ordinary

meaning in 1972 is clear: the “overwhelming majority of

dictionaries defin[ed] sex on the basis of biology and

reproductive function.” Adams, 57 F.4th at 812. As this

Court stated just one year after Congress passed Title IX,

“sex” is “an immutable characteristic” determined by

“birth.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973).

What dictionaries tell us, the “statutory and historical

context” confirms. Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 471 (2001). Throughout Title IX, Congress used

“sex” to denote a biological binary. For example, Title IX

permits schools to go from admitting “only students of one

sex” to admitting “students of both sexes.” 20 U.S.C.

§ 1681(a)(2) (emphases added). It also exempts “fatherson or mother-daughter activities … but if such activities

are provided for students of one sex, opportunities for

reasonably comparable activities shall be provided for

students of the other sex.” Id. § 1681(a)(8) (emphases

added).

Title IX’s enactment history underscores that the

American public understood “sex” to denote a biological

binary. Gundy v. United States, 588 U.S. 128, 140 (2019)

(statutory interpretation is a “holistic endeavor” that

looks at “purpose and history”). “Title IX was enacted in

response to evidence of pervasive discrimination against

women with respect to educational opportunities.”

McCormick ex rel. McCormick v. Sch. Dist. of

Mamaroneck, 370 F.3d 275, 286 (2d Cir. 2004); accord

Cannon v. Univ. of Chi., 441 U.S. 677, 704 & n.36 (1979).

Its primary sponsor, Senator Birch Bayh, noted the

statute sought to “provide for the women of America

something that is rightfully theirs—an equal chance … to

develop the skills they want.” 118 CONG. REC. 5808 (1972).

This purpose “to prohibit the discriminatory practice of

treating women worse than men” “is evident in the text

itself.” Neese v. Becerra, 640 F. Supp. 3d 668, 681 (N.D.

Tex. 2022) (quoting AT&T Mobility LLC v. Concepcion,

563 U.S. 333, 344 (2011)). In short, “it would require

blinders to ignore that the motivation for promulgation of

the regulation on athletics was the historic emphasis on

boys’ athletic programs to the exclusion of girls’ athletic

programs in high schools as well as colleges.” Williams,

998 F.2d at 175.

Yet blinders the Fourth Circuit wore.

Its

interpretation “essentially reverse[s] the entire premise

of Title IX.” Louisiana, 2024 WL 2978786, at *11. And

interpreting “sex” to mean gender identity “would render

meaningless all of the Exemptions set forth in Title IX.”

Louisiana, No. 3:24-CV-00563, 2024 WL 2978786, at *11;

see also Yates v. United States, 574 U.S. 528, 543 (2015)

(explaining how the canon against surplusage is strongest

when an interpretation renders another part of the same

scheme superfluous). For instance, if “sex” encapsulates

“gender identity,” then Title IX’s exemption permitting

“living facilities for the different sexes” does not work. 20

U.S.C. § 1686. Transgender students could “live in both

living facilities associated with their biological sex and

living facilities associated with their gender identity.”

Adams, 57 F.4th at 813. So, too, with Title IX’s exemption

permitting an institution to limit its admission to “only

students of one sex.” 20 U.S.C. § 1681(a)(5). Transgender

students could gain admission to any institution. Title IX’s

exemptions make sense only if sex means sex—not gender

identity. Holding otherwise “would allow decades of

triumphs for women and men alike to go down the drain.”

Louisiana, No. 3:24-CV-00563, 2024 WL 2978786, at *11.

Bostock does not counsel differently. Bostock’s “textdriven reasoning applies only to Title VII.” L.W. ex rel.

Williams v. Skrmetti, 83 F.4th 460, 484 (6th Cir. 2023).

This Court carefully cabined its decision to not “sweep

beyond Title VII to other federal or state laws that

prohibit sex discrimination” or address other issues not

before the Court. Bostock, 590 U.S. at 681; accord Pelcha

v. MW Bancorp, Inc., 988 F.3d 318, 324 (6th Cir. 2021)

(“[T]he Court in Bostock was clear on the narrow reach of

its decision and how it was limited only to Title VII

itself.”).

For good reason. Bostock’s analysis does not work

under Title IX. Bostock focuses on Title VII, which “is a

vastly different statute” than Title IX. Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 168 (2005);

accord Meriwether v. Hartop, 992 F.3d 492, 510 n.4 (6th

Cir. 2021) (“Title VII differs from Title IX in important

respects.”).

The differences start with the statutes’ texts. Title VII

prohibits discrimination on the basis of multiple traits in

employment, whereas Title IX forbids being subjected to

discrimination on the basis of only sex in educational

programs. That matters because, as this Court explained

shortly after Title IX’s enactment, educational

distinctions based on sex are only problematic when they

“have the effect of invidiously relegating the entire class

of females to inferior legal status without regards to the

capabilities of its individual members.” Frontiero, 411

U.S. at 686-87. Reserving girls’ teams for girls promotes

and protects female athletes vis-à-vis male athletes.

The statutes also have two very different contexts, and,

in “law as in life,” context matters. Yates, 574 U.S. at 537.

“[T]he same words, placed in different contexts,

sometimes mean different things.” Id. at 537. Whereas

Title VII focuses on hiring and firing in the workplace,

Title IX deals with “schools and children.” Adams, 57

F.4th at 808. And the Court has long recognized that

“schools are unlike the adult workplace.” Davis ex rel.

LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,

651 (1999).

Title VII and Title IX also handle sex distinctions

differently. Under Title VII, sex “is not relevant to the

selection, evaluation, or compensation of employees”—

ever. Bostock, 590 U.S. at 660 (cleaned up). So under

Bostock, when an employer takes an adverse action, “if

changing the employee’s sex would have yielded a

different choice by the employer[,] a statutory violation

has occurred.” Id. at 660-61.

Conversely, to comply with Title IX, schools often

“must consider sex.” Meriwether, 992 F.3d at 510 n.4.

Though sex has no “relevan[ce] to the selection,

evaluation, or compensation of employees,” Bostock, 590

U.S. at 660 (cleaned up), it “is not an irrelevant

characteristic” in sports, Cohen v. Brown Univ., 101 F.3d

155, 178 (1st Cir. 1996). Without sex separation in sports,

“the great bulk of the females would quickly be eliminated

from participation and denied any meaningful opportunity

for athletic involvement.” Cape v. Tenn. Secondary Sch.

Athletic Ass’n, 563 F.2d 793, 795 (6th Cir. 1977) (per

curiam). Unlike in employment, a male is not “materially

identical in all respects” to a female, no matter how each

may identify. Contra Bostock, 590 U.S. at 660. Thus,

courts should not take “principles announced in the Title

VII context [and] automatically apply [them] in the Title

IX context.” Meriwether, 992 F.3d at 510 n.4.

The Fourth Circuit’s decision is “miles away from the

straightforward text of” Title IX and will “nullify[ ] Title

IX’s promise of equal athletic opportunity for women.”

App.74a. And it exacerbates a split over whether schools

can divide the sexes based on biological differences. The

Eleventh Circuit in Adams said yes. The Fourth Circuit

said no, joining the Ninth Circuit in Hecox and the

Seventh Circuit in A.C. v. Metro Sch. Dist. of Martinsville,

75 F.4th 760 (2023). This Court should “take the

opportunity with all deliberate speed to resolve these

questions of national importance.” App.74a (Agee, J.,

concurring and dissenting in part). App.74a. Certiorari is

warranted.

Title IX has always been understood to

allow sex-specific sports teams and privacy

spaces.

All three branches of government have understood

Title IX to allow laws like the Sports Act.

After Congress enacted Title IX, Congress passed the

so-called “Javits Amendments,” directing the Department

of Education’s predecessor agency to publish Title IX

implementing

regulations,

including

regulations

addressing athletics. Pub. L. No. 93-380, § 844, 88 Stat.

484, 612 (1974). The agency responded by issuing the

sports regulation codified today at 34 C.F.R. § 106.41(b),

which authorizes schools to “sponsor separate teams for

members of each sex.” Congress required that these rules

be submitted for its approval, and Congress then

authorized the rules to take effect. N. Haven Bd. of Educ.

v. Bell, 456 U.S. 512, 531-34 (1982). The agency has never

changed 34 C.F.R. § 106.41(b).

Courts, too, have long understood Title IX to allow

women’s only sports teams. E.g., Mansourian v. Regents

of Univ. of Cal., 602 F.3d 957, 973 (9th Cir. 2010);

Pederson, 213 F.3d at 871; Cohen, 101 F.3d at 177; Kelley

v. Bd. of Trs., 35 F.3d 265, 269-70 (7th Cir. 1994);

Williams, 998 F.2d at 175. The Fourth Circuit’s opinion

here conflicts with these circuit decisions and the

understanding of every federal administration until today.

Various clear-statement canons undermine

the Fourth Circuit’s Title IX interpretation.

Several clear-statement canons compel the Title IX

reading that the Fourth Circuit rejected.

First, courts require a clear statement before a court

can assume that Congress intended to impede the states’

traditional police powers. Bond v. United States, 572 U.S.

844, 859-60 (2014). These traditional powers include

public education, “the very apex of the function of a State.”

Wisconsin v. Yoder, 406 U.S. 205, 213 (1972). And

“[i]nterscholastic athletics obviously play an integral part

in the public education of [the States].” Brentwood Acad.

v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 299

(2001).

Second, “Title IX was enacted as an exercise of

Congress’ powers under the Spending Clause.” Jackson,

544 U.S. at 181. Here, too, “Congress speak[s] with a clear

voice” before imposing funding conditions on the States.

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1,

17 (1981). Crystal clarity is the only way to ensure that

the State “voluntarily and knowingly” accepted the

condition. Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291, 296 (2006) (cleaned up); see also

Kansas, 2024 WL 3273285, at *10 (explaining why

Spending Clause prevented conditioning of Title IX funds

on acceptance of new notion of “gender identity”

discrimination).

Yet Title IX contains no “clear statement” prohibiting

States from classifying sports teams on the basis of sex.

To the contrary, 34 C.F.R. § 106.41(b), which bears

Congress’s imprimatur, expressly says otherwise. And

States have proceeded on that understanding for the

entirety of Title IX’s existence—until now. This Court

should grant review and reaffirm that Title IX means

what it has always said: States and schools may provide

equal opportunities by classifying teams and competitions

according to biological sex.

III.

The Equal-Protection Question Warrants

Review.

The decision below on B.P.J.’s equal-protection claim

deserves immediate review, too. The majority reentrenches circuit splits on critical issues. At other times,

it conflicts with central tenets in this Court’s cases.

The circuits are split over whether and how

biology-based distinctions constitute

actionable discrimination.

1. West Virginia’s Sports Act doesn’t mention

“transgender” or any similar status. The Act focuses on

biological sex, a distinction that reflects “inherent

differences between men and women.” VMI, 518 U.S. at

533 (cleaned up). Even so, the majority below concluded

that the Act constituted “a facial classification based on

gender identity” that in turn triggered intermediate

scrutiny. App.24a (citing Grimm v. Gloucester Cnty. Sch.

Bd., 972 F.3d 586, 610-13 (4th Cir. 2020)).

But the circuits are split on whether transgender

status or gender identity triggers intermediate (or

“heightened”) scrutiny at all. Prominent among those

cases is L.W., 83 F.4th at 408 (6th Cir. 2023), cert. granted

2024 WL 3089532 (June 24, 2024), though, as explained

above, a decision there will not resolve the issues

presented here. Likewise, a concurrently filed petition for

certiorari in Little v. Hecox, No. 23-___, presents the same

equal-protection question in the athletics context.

On one side of the line fall courts like the Fourth

Circuit. There, “transgender persons constitute a quasisuspect class,” so heightened scrutiny applies whenever

some separation is thought to implicate them. Grimm, 972

F.3d at 613. In much the same way, the Ninth Circuit has

held that “heightened scrutiny applies to laws that

discriminate on the basis of transgender status, reasoning

that gender identity is at least a ‘quasi-suspect class.’”

Hecox v. Little, 79 F.4th 1009, 1026 (9th Cir. 2023); see also

Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661, 670 n.4

(8th Cir. 2022) (discerning “no clear error in the district

court’s factual findings underlying [its] legal conclusion”

that a law deserved heightened scrutiny as facially

discriminatory

against

“transgender

people”).

Meanwhile, the Seventh Circuit has reasoned that

“discrimination based on transgender status is a form of

sex discrimination,” which likewise triggers intermediate

scrutiny. A.C. ex rel. M.C. v. Metro. Sch. Dist. of

Martinsville, 75 F.4th 760, 769 (7th Cir. 2023).

Conversely, other courts have refused to apply

heightened or intermediate scrutiny in similar

circumstances. For instance, the en banc Eleventh Circuit

did not look to “transgender status” or the like when

evaluating a sex-separation bathroom policy like the one

at issue in Grimm. Adams, 57 F.4th at 809. Instead, it

did what should have been done here: look to whether the

separation between biological boys and girls can be

constitutionally justified. Id. The Eleventh Circuit is not

alone. See, e.g., Druley v. Patton, 601 F. App’x 632, 635

(10th Cir. 2015) (“[T]his court has not held that a

transsexual plaintiff is a member of a protected suspect

class for purposes of Equal Protection claims.”).

But it gets worse, as a second split lurks. The majority

below reasoned that the Act’s biology-focused distinction

is a “facial classification based on gender identity” because

it treats “all ‘biological males’ … the same.” App.24a-25a.

In other words, in the Fourth Circuit, distinctions drawn

with an eye towards biological sex are assumed to target

those who self-identify with a different gender. The Ninth

Circuit held similarly, reasoning that a reference to

“biological sex functions as a form of proxy

discrimination.” Hecox, 79 F.4th at 1024 (cleaned up).

But the Eleventh Circuit rightly concluded that

“discrimination based on biological sex” “does not”

“necessarily entail[] discrimination based on transgender

status.” Adams, 57 F.4th at 809; see also Soule v. Conn.

Assoc. of Schs. Inc., 90 F.4th 34, 62 (2d Cir. 2023)

(Menashi, J., concurring) (explaining how this Court has

not “establish[ed] that assigning sports teams based on

biological sex would constitute discrimination”); Doe 2 v.

Shanahan, 917 F.3d 694, 733 (D.C. Cir. 2019) (Williams,

J., concurring) (explaining how a military requirement

that member “serve in their biological sex” is “facially

neutral”). So the Fourth Circuit has deepened another

circuit split here, too.

2. The decision below reflects how the courts’

confused approaches have produced wrong-headed

results.

Under the Sports Act, everyone born male competes

on male or coed public-school teams—no matter whether

they identify as male, female, nonbinary, or one of the

other dozens of genders that students might adopt. The

Act, then, is deliberately indifferent to the question of

gender identity, hinging instead on sex—“an immutable

characteristic determined solely by the accident of birth.”

Frontiero, 411 U.S. at 686. How, then, can the Act be said

to target gender identity as a trait for discrimination?

Because the Act’s purported “bar” affects half the

population (males), a “lack of identity” exists between its

sex-based classification and those identifying as

“transgender.” Adams, 57 F.4th at 809.

But the majority refused to look to “the statutory

classification itself.” Califano v. Boles, 443 U.S. 282, 294

(1979). Instead, it surmised from unidentified facts that

the law had the “sole” and “undisputed purpose” of

“exclud[ing] transgender girls … from participation on

girls [sic] sports teams.” App.13a, 24a. Yet the statute

itself says otherwise. W. VA. CODE § 18-2-25d(a)(3). And

naked disbelief can’t transform a facially neutral statute

into intentional discrimination. Beyond that, the majority

below repeatedly—and mistakenly—emphasized the

Act’s perceived “effect.” But many laws “affect certain

groups unevenly,” and those laws are “ordinarily of no

constitutional concern” if they treat that group “no

differently from all other members of the” overall “class

described” by the law. Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256, 271-72 (1979). Disparate impact isn’t

actionable. “The Equal Protection Clause … prohibits

only intentional discrimination; it does not have a

disparate-impact component.” Ricci v. DeStefano, 557

U.S. 557, 627 (2009) (Ginsburg, J., dissenting). Cases

discussing “when a neutral law has a disparate impact”

“signal[] no departure from the settled rule that the

Fourteenth Amendment guarantees equal laws, not equal

results.” Feeney, 442 U.S. at 273.

Muddled reasoning like the Fourth Circuit’s will

continue without this Court’s intervention, and “a

nationally uniform approach” will never be possible. A.C.,

75 F.4th at 775 (Easterbrook, J., concurring).

The Fourth Circuit’s approach to as-applied

challenges sharply conflicts with this

Court’s decisions.

The Fourth Circuit also refashioned the intermediatescrutiny standard in as-applied cases, requiring the State

to explain how the Act advances substantial interests in

B.P.J.’s specific circumstances. This approach will compel

lower courts to apply a strict-scrutiny-style standard in

every as-applied constitutional challenge. The Court must

intervene to stop that chaos.

Start from first principles. Labeling a claim “facial or

as-applied … does not speak … to the substantive rule of

law.” Bucklew v. Precythe, 587 U.S. 119, 138 (2019). For

equal-protection claims, courts consider whether the state

“action premised on a particular classification is valid as a

general matter, not merely to the specifics of the case

before” it. City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 446 (1985). And West Virginia need not use a

classification “capable of achieving its ultimate objective

in every instance.” Nguyen, 533 U.S. at 70; accord Clark

I, 695 F.2d at 1132; see also Edge Broad. Co., 509 U.S. at

427 (explaining intermediate scrutiny does not turn on

“whether the governmental interest is directly advanced

as applied to a single person or entity”). Rather, the

Sports Act’s validity turns on how it relates “to the overall

problem the government seeks to correct, not on the

extent to which it furthers the government’s interests in

an individual case.” Ward v. Rock Against Racism, 491

U.S. 781, 801 (1989); United States v. Edge Broad. Co., 509

U.S. 418, 430 (1993); accord Califano, 434 U.S. at 55 (equal

protection considers “characteristics typical of the

affected classes rather than … selected, atypical

examples”). Sex-based classifications play by these same

rules. See, e.g., Nguyen, 533 U.S. at 53; VMI, 518 U.S. at

515; Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982).

The majority below rejected these principles. Though

it wasn’t clear exactly what “fit” standard it was applying,

it was effectively a perfect one—requiring the State to

justify the Act in the specific case of a biological male who

has arguably not undergone Tanner 2 stage puberty and

seeks to compete on a girls’ cross-country or track team.

App.31a, 34a. But leaning on “personal circumstances” in

this way “is an impermissible attempt to ratchet up [the]

standard of review … toward strict scrutiny.” Doe v.

United States, 419 F.3d 1058, 1063 (9th Cir. 2005) (cleaned

up). And the approach is “fundamentally flawed because

it effectively would create an exception to the statute that

does not exist.” Harley v. Wilkinson, 988 F.3d 766, 770

(4th Cir. 2021), abrogated on other grounds by N.Y. State

Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 19 n.4 (2022).

Schools are left to wrestle with a slew of claims from

students who feel their circumstances justify special

exceptions, too.

The Fourth Circuit’s attack on traditional standards of

review—which effectively requires West Virginia schools

to classify athletes using a case-by-case parsing of each

students’ individual circumstances—requires this Court’s

review.

The Fourth Circuit’s reasoning on

similarity flouts this Court’s precedents and

other courts’ decisions.

The Equal Protection Clause does not “demand that a

statute necessarily apply equally to all persons” or require

“things which are different in fact to be treated in law as

though they were the same.” Rinaldi v. Yeager, 384 U.S.

305, 309 (1966) (cleaned up). So policymakers may pass

laws that reject sex-based stereotypes but still

“realistically reflect[] the fact that the sexes are not

similarly situated in certain circumstances.” Michael M.

v. Super. Ct. of Sonoma Cnty., 450 U.S. 464, 469 (1981).

After all, the “[p]hysical differences between men and

women … are enduring.” VMI, 518 U.S. at 533. Sex can

thus “represent[] a legitimate, accurate proxy” to pursue

a permissible legislative end, Craig v. Boren, 429 U.S. 190,

204 (1976), such as “provid[ing] for the special problems of

women,” Weinberger v. Wiesenfeld, 420 U.S. 636, 653

(1975). And courts have allowed for the use of these

proxies even when some other categorization might

provide for a tighter fit with the targeted physical

characteristics. See, e.g., Texas v. Cardona, No. 4:23-cv00604, 2024 WL 2947022, at *34 (N.D. Tex. June 11, 2024)

(focusing on “average physiological differences” and the

“great bulk” of affected women (cleaned up)); Petrie v. Ill.

High Sch. Ass’n, 394 N.E.2d 855, 862 (Ill. 1979) (noting the

“impractical” nature of trying to parse physical

differences on an individual basis).

Thus, in choosing to focus on sex, the West Virginia

Legislature respected the Equal Protection Clause’s

command. The Sports Act’s reliance on “biological sex”

“represents a legitimate, accurate proxy” to pursue a

permissible legislative end. Craig, 429 U.S. at 204. It

declined to make the focus gender identity—a factor

B.P.J.’s expert said “is not a useful indicator of athletic

performance.” Appl.App.214a.

This choice to focus on biological sex is nothing new

when it comes to sports. In physical contexts, “[t]he

difference between men and women … is a real one.”

Nguyen, 533 U.S. at 73; accord Adams, 57 F.4th at 819

(Lagoa, J., specially concurring) (“[T]here are inherent

differences between … male[s] and … female[s] and …

those born male … have physiological advantages in many

sports.”). Evidence below agreed. Appl.App.27a-28a, 94a109a, 151a-192a.

And “due to [these] average

physiological differences, males would displace females to

a substantial extent if they were allowed to compete”

together. Clark I, 695 F.2d at 1131; see also Cape, 563

F.2d at 795 (without distinct teams, many biological

“females would quickly be eliminated from participation

and denied any meaningful opportunity for athletic

involvement”). This displacement would in turn deny girls

“an equal opportunity to compete in interscholastic

events.” O’Connor v. Bd. of Ed. of Sch. Dist. 23, 449 U.S.

1301, 1307 (1980) (Stevens, J., in chambers).

Recognizing these common-sense ideas, courts across

the country have found for decades that men and women

may be constitutionally separated by biological sex when

it comes to sports. See, e.g., Kleczek v. R.I. Interscholastic

League, Inc., 612 A.2d 734, 739 (R.I. 1992); B.C. v. Bd. of

Educ., Cumberland Reg’l Sch. Dist., 531 A.2d 1059, 1065

(N.J. App. Div. 1987); In re Mularadelis v. Haldane Cent.

Sch. Bd., 74 A.D.2d 248, 256 (N.Y. App. Div. 1980); Petrie,

394 N.E.2d at 862. In other words, “[i]n requiring schools

to designate sports-team memberships on the basis of

biological sex,” statutes like the Sports Act “adopt[] the

uncontroversial proposition that most men and women do

have different (and innate) physical attributes.” D.N. ex

rel. Jessica N. v. DeSantis, No. 21-cv-61344, 2023 WL

7323078, at *9 (S.D. Fla. Nov. 6, 2023). The need for

physical engagement in sports explains why sexseparation is the “norm” in that context (unlike

“admissions and employment,” which differ in

“analytically material ways”). Cohen, 101 F.3d at 177.

But the majority below abandoned these long-accepted

principles. It felt West Virginia must face an equalprotection claim because it had not been conclusively

established that all males “enjoy a meaningful competitive

athletic advantage over cisgender girls.” App.34a; but see

Turner Broad. Sys. v. FCC, 520 U.S. 180, 211 (1997)

(explaining that question under intermediate scrutiny is

“not whether” the legislature was right about the

existence of a problem “as an objective matter”). As

Judge Agee recognized in dissent, this approach

effectively abandons any meaningful “similarly situated

analysis.” App.47a-50a & n.2. It transforms gender

identity into the decisive criterion for competitive sports;

after all, B.P.J. is not suggesting low-performing

biological males who identify as males should be permitted

to play on the girls’ teams. And it allows even the weakest

of supposed comparisons to defeat a validly enacted state

law. That’s a far cry from requiring “similarly situated”

persons to be “identical in all relevant respects,”

Reinebold v. Bruce, 18 F.4th 922, 926 (7th Cir. 2021)

(cleaned up), which courts required before. See also Back

Beach Neighbors Comm. v. Town of Rockport, 63 F.4th

126, 131 (1st Cir. 2023) (an “extremely high degree of

similarity” (cleaned up)); Golden Glow Tanning Salon,

Inc. v. City of Columbus, 52 F.4th 974, 978 (5th Cir. 2022)

(“in all relevant respects alike” (cleaned up)); Griffin

Indus., Inc. v. Irvin, 496 F.3d 1189, 1204 (11th Cir. 2007)

(same).

The Court should thus grant the petition to reaffirm

the idea that biology justifies the different treatment

reflected in the Sports Act and similar statutes.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ALLIANCE DEFENDING

FREEDOM

PATRICK MORRISEY

Attorney General

JOHN J. BURSCH

CHRISTIANA M. KIEFER

440 First Street, NW

Suite 600

Washington, DC 20001

jbursch@ADFlegal.org

ckiefer@ADFlegal.org

(616) 450-4235

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

JAMES A. CAMPBELL

JOHANNES S. WIDMALMDELPHONSE

44180 Riverside Pkwy.

Lansdowne, VA 20176

jcampbell@ADFlegal.org

jwidmalmdelphonese@

ADFlegal.org

(571) 707-4655

OFFICE OF THE WEST

VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

Curtis.r.a.capehart@

wvago.gov

spencer.j.davenport@

wvago.gov

(304) 558-2021

JONATHAN A. SCRUGGS

JACOB P. WARNER

15100 N. 90th Street

Scottsdale, AZ 85260

jscruggs@ADFlegal.org

jwarner@ADFlegal.org

(480) 444-0020

Co-Counsel for State of

West Virginia and Counsel

for Lainey Armistead

CURTIS R. A. CAPEHART

Deputy Attorney General

SPENCER J. DAVENPORT

Assistant Solicitor General

Counsel for State of West

Virginia

KELLY C. MORGAN

KRISTEN V. HAMMOND

AMY M. SMITH

STEPTOE & JOHNSON

BAILEY & WYANT, PLLC

PLLC

500 Virginia St. E.

400 White Oaks Blvd.

Suite 600

Bridgeport, WV 26330

Charleston, WV 25301

(304) 933-8000

(303) 345-4222

amy.smith@steptoekmorgan@baileywyant.com johnson.com

khammond@baileywyant.

com

Counsel for Harrison

County Board of

Counsel for West Virginia Education and Dora

State Board of Education Stutler

and W. Clayton Burch,

State Superintendent

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