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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APPENDICES

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

___________________

APPENDIX A

___________________

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 23-1078

___________________

B.P.J., by her next friend and mother; HEATHER

JACKSON,

Plaintiffs – Appellants,

WEST VIRGINIA STATE BOARD OF EDUCATION;

HARRISON COUNTY BOARD OF EDUCATION;

WEST

VIRGINIA

SECONDARY

SCHOOL

ACTIVITIES COMMISSION; W. CLAYTON BURCH,

in his official capacity as State Superintendent; DORA

STUTLER, in her official capacity as Harrison County

Superintendent,

Defendants – Appellees,

and

THE STATE

ARMISTEAD,

WEST

VIRGINIA;

LAINEY

Intervenors – Appellees.

—————————

TREVOR PROJECT; TRANSGENDER WOMEN

ATHLETES; UNITED STATES OF AMERICA;

NATIONAL WOMEN’S LAW CENTER AND 51

ADDITIONAL ORGANIZATIONS; STATE OF NEW

YORK; AMERICAN ACADEMY OF PEDIATRICS;

AMERICAN MEDICAL ASSOCIATION; FOUR

ADDITIONAL HEALTH CARE ORGANIZATIONS;

ATHLETE ALLY; CURRENT AND FORMER

PROFESSIONAL,

OLYMPIC

AND

INTERNATIONAL ATHLETES IN WOMENS

SPORTS; NATIONAL WOMEN’S SOCCER LEAGUE

PLAYERS ASSOCIATION; WOMEN’S SPORTS

FOUNDATION; DISTRICT OF COLUMBIA; STATE

OF HAWAII; STATE OF CALIFORNIA; STATE OF

COLORADO; STATE OF CONNECTICUT; STATE OF

DELAWARE; STATE OF ILLINOIS; STATE OF

MAINE; STATE OF MARYLAND; STATE OF

MASSACHUSETTS; STATE OF MICHIGAN; STATE

OF MINNESOTA; STATE OF NEW JERSEY; STATE

OF OREGON; STATE OF RHODE ISLAND; STATE

OF VERMONT; STATE OF WASHINGTON,

Amici Supporting Appellants,

and

THOMAS

SOCIETY;

NATIONAL

ASSOCIATION OF EVANGELICALS; CONCERNED

WOMEN FOR AMERICA; INSTITUTE FOR FAITH

AND FAMILY; SAMARITAN’S PURSE; WOMEN’S

DECLARATION

INTERNATIONAL

USA;

ATHLETIC OFFICIALS AND COACHES OF

FEMALE

ATHLETES;

FEMALE

OLYMPIC

ROWERS MARY I. O’CONNOR, CAROL BROWN,

PATRICIA

SPRATLEN

ETEM,

VALERIE

MCCLAIN, AND JAN PALCHIKOFF; 22 BUSINESS

EXECUTIVES; INTERNATIONAL CONSORTIUM

ON FEMALE SPORT; INDEPENDENT COUNCIL

ON WOMEN’S SPORT; DEFENSE OF FREEDOM

INSTITUTE; 78 FEMALE ATHLETES, COACHES,

SPORTS OFFICIALS, AND PARENTS OF FEMALE

ATHLETES; PUBLIC ADVOCATE OF THE UNITED

STATES;

AMERICA’S

FUTURE;

U.S.

CONSTITUTIONAL RIGHTS LEGAL DEFENSE

FUND; ONE NATION UNDER GOD FOUNDATION;

FITZGERALD

GRIFFIN

FOUNDATION;

CONSERVATIVE

LEGAL

DEFENSE

AND

EDUCATION FUND; INDEPENDENT WOMEN’S

LAW

CENTER;

PARENTS

DEFENDING

EDUCATION; ALABAMA, ARKANSAS, AND 15

OTHER STATES,

Amici Supporting Appellees.

No. 23-1130

B.P.J., by her next friend and mother; HEATHER

JACKSON,

Plaintiffs – Appellees,

WEST

VIRGINIA

SECONDARY

ACTIVITIES COMMISSION,

Defendant – Appellant,

SCHOOL

and

WEST VIRGINIA STATE BOARD OF EDUCATION;

HARRISON COUNTY BOARD OF EDUCATION; W.

CLAYTON BURCH, in his official capacity as State

Superintendent; DORA STUTLER, in her official

capacity as Harrison County Superintendent,

and

THE STATE

ARMISTEAD,

Defendants,

WEST

VIRGINIA;

LAINEY

Intervenors.

—————————

THOMAS

SOCIETY;

NATIONAL

ASSOCIATION OF EVANGELICALS; CONCERNED

WOMEN FOR AMERICA; INSTITUTE FOR FAITH

AND FAMILY; SAMARITAN’S PURSE; WOMEN’S

DECLARATION

INTERNATIONAL

USA;

ATHLETIC OFFICIALS AND COACHES OF

FEMALE

ATHLETES;

FEMALE

OLYMPIC

ROWERS MARY I. O’CONNOR, CAROL BROWN,

PATRICIA

SPRATLEN

ETEM,

VALERIE

MCCLAIN, AND JAN PALCHIKOFF; 22 BUSINESS

EXECUTIVES; INTERNATIONAL CONSORTIUM

ON FEMALE SPORT; INDEPENDENT COUNCIL

ON WOMEN’S SPORT; DEFENSE OF FREEDOM

INSTITUTE; 78 FEMALE ATHLETES, COACHES,

SPORTS OFFICIALS, AND PARENTS OF FEMALE

ATHLETES; PUBLIC ADVOCATE OF THE UNITED

STATES;

AMERICA’S

FUTURE;

U.S.

CONSTITUTIONAL RIGHTS LEGAL DEFENSE

FUND; ONE NATION UNDER GOD FOUNDATION;

FITZGERALD

GRIFFIN

FOUNDATION;

CONSERVATIVE

LEGAL

DEFENSE

AND

EDUCATION FUND; INDEPENDENT WOMEN’S

LAW

CENTER;

PARENTS

DEFENDING

EDUCATION; ALABAMA, ARKANSAS, AND 15

OTHER STATES,

Amici Supporting Appellants,

and

TREVOR PROJECT; TRANSGENDER WOMEN

ATHLETES; UNITED STATES OF AMERICA;

NATIONAL WOMEN’S LAW CENTER AND 51

ADDITIONAL ORGANIZATIONS; STATE OF NEW

YORK; AMERICAN ACADEMY OF PEDIATRICS;

AMERICAN MEDICAL ASSOCIATION; FOUR

ADDITIONAL HEALTH CARE ORGANIZATIONS;

ATHLETE ALLY; CURRENT AND FORMER

PROFESSIONAL,

OLYMPIC

AND

INTERNATIONAL ATHLETES IN WOMENS

SPORTS; NATIONAL WOMEN’S SOCCER LEAGUE

PLAYERS ASSOCIATION; WOMEN’S SPORTS

FOUNDATION; DISTRICT OF COLUMBIA; STATE

OF HAWAII; STATE OF CALIFORNIA; STATE OF

COLORADO; STATE OF CONNECTICUT; STATE OF

DELAWARE; STATE OF ILLINOIS; STATE OF

MAINE; STATE OF MARYLAND; STATE OF

MASSACHUSETTS; STATE OF MICHIGAN; STATE

OF MINNESOTA; STATE OF NEW JERSEY; STATE

OF OREGON; STATE OF RHODE ISLAND; STATE

OF VERMONT; STATE OF WASHINGTON,

Amici Supporting Appellees.

___________________

Appeals from the United States District Court for the

Southern District of West Virginia, at Charleston. Joseph

R. Goodwin, District Judge. (2:21-cv-00316)

___________________

Argued: October 27, 2023

Decided: April 16, 2024

___________________

Before AGEE, HARRIS, and HEYTENS, Circuit

Judges.

___________________

No. 23-1130 dismissed. No. 23-1078 vacated in part,

reversed in part, and remanded with instructions by

published opinion. Judge Heytens wrote the opinion,

which Judge Harris joined and Judge Agee joined as to

Parts II and III. Judge Agee wrote an opinion concurring

in part and dissenting in part.

___________________

ARGUED: Joshua A. Block, AMERICAN CIVIL

LIBERTIES UNION, New York, New York, for

Appellants/Cross-Appellees. Lindsay Sara See, OFFICE

OF THE ATTORNEY GENERAL OF WEST

VIRGINIA, Charleston, West Virginia; Roberta Frances

Green, SHUMAN, MCCUSKEY & SLICER, PLLC,

Charleston, West Virginia, for Appellees/CrossAppellants. ON BRIEF: Sruti Swaminathan, New York,

New York, Tara Borelli, Carl Charles, LAMBDA

LEGAL, Decatur, Georgia; Aubrey Sparks, Nick Ward,

AMERICAN CIVIL LIBERTIES UNION OF WEST

VIRGINIA FOUNDATION, Charleston, West Virginia;

Kathleen Hartnett, Julie Veroff, Zoë Helstrom, San

Francisco, California, Andrew Barr, Denver, Colorado,

Katelyn Kang, New York, New York, Elizabeth

Reinhardt, Boston, Massachusetts, Mariah A. Young,

COOLEY LLP, Chicago, Illinois, for Appellant/CrossAppellee. John J. Bursch, Christiana M. Kiefer,

Washington, D.C., Johannes S. Widmalm-Delphonse,

Landsdowne, Virginia, Jonathan A. Scruggs, Jacob P.

Warner, ALLIANCE DEFENDING FREEDOM,

Scottsdale, Arizona, for Intervenor-Appellee Lainey

Armistead. Patrick Morrisey, Attorney General, Michael

R. Williams, Senior Deputy Solicitor General, Curtis R.A.

Capehart, Deputy Attorney General, Grant A. Newman,

Assistant Solicitor General, Spencer J. Davenport, Special

Assistant, OFFICE OF THE ATTORNEY GENERAL

OF WEST VIRGINIA, Charleston, West Virginia, for

Intervenor-Appellee State of West Virginia. Roberta F.

Green, Kimberly M. Bandy, Shannon M. Rogers,

SHUMAN MCCUSKEY SLICER, Charleston, West

Virginia, for Appellee/Cross-Appellant West Virginia

Secondary School Activities Commission. Susan L.

Deniker, STEPTOE & JOHNSON PLLC, Bridgeport,

West Virginia, for Appellees Harrison County Board of

Education and Dora Stutler. Kelly C. Morgan, Michael W.

Taylor, Kristen V. Hammond, BAILEY & WYANT,

PLLC, Charleston, West Virginia, for Appellees West

Virginia State Board of Education and W. Clayton Burch,

State Superintendent. Shireen A. Barday, Mark C.

Davies, PALLAS PARTNERS (US) LLP, New York,

New York; Abbey Hudson, Los Angeles, California, Emily

Maxim Lamm, Maxwell A. Baldi, GIBSON, DUNN &

CRUTCHER LLP, Washington, D.C., for Amicus The

Trevor Project. David Brown, TRANSGENDER LEGAL

DEFENSE & EDUCATION FUND, New York, New

York; Joseph M. Callaghan, MAYER BROWN LLP,

Chicago, Illinois, for Amici Transgender Women Athletes.

Kristen Clarke, Assistant Attorney General, Bonnie I.

Robin-Vergeer, Elizabeth Parr Hecker, Appellate

Section, Civil Rights Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Amicus United States of America. Anne E. Lopez,

Attorney General, Kimberly T. Guidry, Solicitor General,

Kaliko‘onālani D. Fernandes, Deputy Solicitor General,

OFFICE OF THE ATTORNEY GENERAL OF

HAWAI’I, Honolulu, Hawai’i, for Amicus State of Hawai’i.

Letitia James, Attorney General, Mark S. Grube,

Assistant Solicitor General, Barbara D. Underwood,

Solicitor General, Judith N. Vale, Deputy Solicitor

General, OFFICE OF THE ATTORNEY GENERAL

OF NEW YORK, New York, New York, for Amicus State

of New York. Rob Bonta, Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF CALIFORNIA,

Sacramento, California, for Amicus State of California.

Philip J. Weiser, Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF COLORADO, Denver,

Colorado, for Amicus State of Colorado. William Tong,

Attorney General, OFFICE OF THE ATTORNEY

GENERAL

CONNECTICUT,

Hartford,

Connecticut, for Amicus State of Connecticut. Kathleen

Jennings, Attorney General, OFFICE OF THE

ATTORNEY

GENERAL

DELAWARE,

Wilmington, Delaware, for Amicus State of Delaware.

Kwame Raoul, Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF ILLINOIS, Chicago,

Illinois, for Amicus State of Illinois. Aaron M. Frey,

Attorney General, OFFICE OF THE ATTORNEY

GENERAL OF MAINE, Augusta, Maine, for Amicus

State of Maine. Anthony G. Brown, Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF

MARYLAND, Baltimore, Maryland, for Amicus State of

Maryland. Andrea Joy Campbell, Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF

MASSACHUSETTS, Boston, Massachusetts, for Amicus

Commonwealth of Massachusetts. Dana Nessel, Attorney

General, OFFICE OF THE ATTORNEY GENERAL

OF MICHIGAN, Lansing, Michigan, for Amicus State of

Michigan. Keith Ellison, Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF MINNESOTA, St.

Paul, Minnesota, for Amicus State of Minnesota. Matthew

J. Platkin, Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF NEW JERSEY, Trenton,

New Jersey, for Amicus State of New Jersey. Ellen F.

Rosenblum, Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF OREGON, Salem, Oregon,

for Amicus State of Oregon. Peter F. Neronha, Attorney

General, OFFICE OF THE ATTORNEY GENERAL

OF RHODE ISLAND, Providence, Rhode Island, for

Amicus State of Rhode Island. Charity R. Clark, Attorney

General, OFFICE OF THE ATTORNEY GENERAL

OF VERMONT, Montpelier, Vermont, for Amicus State

of Vermont. Robert W. Ferguson, Attorney General,

10a

OFFICE OF THE ATTORNEY GENERAL OF

WASHINGTON, Olympia, Washington, for Amicus State

of Washington. Brian L. Schwalb, Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF THE

DISTRICT OF COLUMBIA, Washington, D.C., for

Amicus District of Columbia. Matthew D. Cipolla, New

York, New York, Illyana A. Green, Washington, D.C.,

Howard S. Suskin, David M. Kroeger, Chicago, Illinois,

Chasel Lee, JENNER & BLOCK LLP, San Francisco,

California, for Amici American Academy of Pediatrics,

American Medical Association, and Four Additional

Health Care Organizations. Fatima Goss Graves, Emily

Martin, Sunu Chandy, Shiwali Patel, Auden Perino,

Hunter F. Iannucci, NATIONAL WOMEN’S LAW

CENTER, Washington, D.C.; Jessica L. Ellsworth,

Kaitlyn A. Golden, Devin M. Urness, Washington, D.C.,

Sarah W. Keller, HOGAN LOVELLS US LLP, Tysons,

Virginia, for Amici National Women’s Law Center and 51

Additional Organizations. Michelle N. Tanney, Edward J.

Jacobs, Michael A. Sabella, Sydney W. Park, BAKER &

HOSTETLER LLP, New York, New York, for Amici

Current and Former Professional Olympic and

International Athletes in Women’s Sports; The National

Women’s Soccer League Players Association; The

Women’s Sports Foundation; and Athlete Ally. Arthur A.

Schulcz, CHAPLAINS COUNSEL, PLLC, Leesburg,

Virginia; Timothy Belz, J. Matthew Belz, CLAYTON

PLAZA LAW GROUP, L.C., St. Louis, Missouri, for

Amici Thomas More Society and National Association of

Evangelicals. Deborah J. Dewart, Hubert, North

Carolina, for Amicus Institute for Faith & Family.

Christopher Mills, SPERO LAW LLC, Charleston, South

Carolina, for Amici Concerned Women for America and

Samaritan’s Purse. Sarah E. Child, NELSON MADDEN

BLACK LLP, New York, New York, for Amici Female

11a

Olympic Rowers Mary I. O’Connor, Carol Brown, Patricia

Spratlen Etem, Valerie McClain, and Jan Palchikoff. Tim

Griffin, Attorney General, Nicholas J. Bronni, Solicitor

General, Dylan L. Jacobs, Deputy Solicitor General,

Hannah L. Templin, Assistant Solicitor General, OFFICE

OF THE ATTORNEY GENERAL OF ARKANSAS,

Little Rock, Arkansas, for Amicus State of Arkansas.

Steve Marshall, Attorney General, Edmund G. LaCour

Jr., Solicitor General, Bethany C. Lee, Assistant Solicitor

General, OFFICE OF THE ATTORNEY GENERAL

OF ALABAMA, Montgomery, Alabama, for Amicus State

of Alabama. Chris Carr, Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF GEORGIA, Atlanta,

Georgia, for Amicus State of Georgia. Raúl R. Labrador,

Attorney General, OFFICE OF THE ATTORNEY

GENERAL OF IDAHO, Boise, Idaho, for Amicus State

of Idaho. Theodore E. Rokita, Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF

INDIANA, Indianapolis, Indiana, for Amicus State of

Indiana. Brenna Bird, Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF IOWA, Des Moines,

Iowa, for Amicus State of Iowa. Kris W. Kobach, Attorney

General, OFFICE OF THE ATTORNEY GENERAL

OF KANSAS, Topeka, Kansas, for Amicus State of

Kansas. Daniel Cameron, Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF KENTUCKY,

Frankfort, Kentucky, for Amicus Commonwealth of

Kentucky. Jeff Landry, Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF LOUISIANA, Baton

Rouge, Louisiana, for Amicus State of Louisiana. Austin

Knudsen, Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF MONTANA, Helena,

Montana, for Amicus State of Montana. Lynn Fitch,

Attorney General, OFFICE OF THE ATTORNEY

GENERAL OF MISSISSIPPI, Jackson, Mississippi, for

12a

Amicus State of Mississippi. Michael T. Hilgers, Attorney

General, OFFICE OF THE ATTORNEY GENERAL

OF NEBRASKA, Lincoln, Nebraska, for Amicus State of

Nebraska. Alan Wilson, Attorney General, OFFICE OF

THE

ATTORNEY

GENERAL

SOUTH

CAROLINA, Columbia, South Carolina, for Amicus State

of South Carolina. Marty Jackley, Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF

SOUTH DAKOTA, Pierre, South Dakota, for Amicus

State of South Dakota. Ken Paxton, Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF

TEXAS, Austin, Texas, for Amicus State of Texas. Sean

D. Reyes, Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF UTAH, Salt Lake City,

Utah, for Amicus State of Utah. Jason Miyares, Attorney

General, OFFICE OF THE ATTORNEY GENERAL

OF VIRGINIA, Richmond, Virginia, for Amicus

Commonwealth of Virginia. Henry P. Wall, Columbia,

South Carolina; Donald A. Daugherty, Jr., DEFENSE

OF FREEDOM INSTITUTE, Washington, D.C., for

Amicus Defense of Freedom Institute. William Bock, III,

KROGER GARDIS & REGAS, Indianapolis, Indiana, for

Amici International Consortium on Female Sport and

Independent Council on Women’s Sport. Kristine L.

Brown, Denver, Colorado; R. Daniel Gibson, STAM LAW

FIRM, PLLC, Apex, North Carolina, for Amici 78 Female

Athletes, Coaches, Sports Officials, and Parents of

Female

Athletes.

Jennifer

Braceras,

INDEPENDENT

WOMEN’S

LAW

CENTER,

Washington, D.C.; Gene C. Schaerr, Cristina Martinez

Squiers, Annika Boone Barkdull, SCHAERR | JAFFE

LLP, Washington, D.C., for Amicus Independent

Women’s Law Center. Samuel J. Salario, Jr., LAWSON

HUCK GONZALEZ, PLLC, Tampa, Florida; Kara

Dansky,

WOMEN’S

DECLARATION

13a

INTERNATIONAL USA, Washington, D.C., for Amicus

Women’s Declaration International USA. Anna St. John,

HAMILTON

LINCOLN

LAW

INSTITUTE,

Washington, D.C., for Amici 25 Athletic Officials and

Coaches of Female Athletes. Rick Boyer, INTEGRITY

LAW FIRM, Lynchburg, Virginia; Patrick McSweeney,

Powhatan, Virginia; Joseph P. Secola, SECOLA LAW

OFFICES, LLC, Danbury, Connecticut; J. Mark Brewer,

BREWER & PRITCHARD, P.C., Houston, Texas; Kerry

L. Morgan, PENTIUK, COUVREUR & KOBILJAK,

P.C., Wyandotte, Michigan; William J. Olson, Jeremiah L.

Morgan, Robert J. Olson, WILLIAM J. OLSON, P.C.,

Vienna, Virginia, for Amici Public Advocate of the United

States; America’s Future; U.S. Constitutional Rights

Legal Defense Fund; One Nation Under God Foundation;

Fitzgerald Griffin Foundation; and Conservative Legal

Defense and Education Fund. J. Michael Connolly, James

F. Hasson, CONSOVOY MCCARTHY PLLC, Arlington,

Virginia, for Amicus Parents Defending Education. Reese

R. Boyd, III, DAVIS & BOYD LLC, Myrtle Beach, South

Carolina, for Amici 22 Business Executives.

___________________

TOBY HEYTENS, Circuit Judge:

A West Virginia law originally introduced as the “Save

Women’s Sports Act” provides that “[a]thletic teams or

sports designated for females, women, or girls shall not be

open to students of the male sex,” while defining “male” as

“an individual whose biological sex determined at birth is

male.” W. Va. Code § 18-2-25d(b)(3) & (c)(2). Because

West Virginia law and practice have long provided for sexdifferentiated sports teams, the Act’s sole purpose—and

its sole effect—is to prevent transgender girls from

playing on girls teams. The question before us is whether

the Act may lawfully be applied to prevent a 13-year-old

14a

transgender girl who takes puberty blocking medication

and has publicly identified as a girl since the third grade

from participating in her school’s cross country and track

teams. We hold it cannot.

To state the obvious, the Act did not originate the

concept of sex-based sports teams. Indeed, regulations in

West Virginia have stated for at least 30 years that

“[s]chools may sponsor separate teams for members of

each sex where selection for such teams is based upon

competitive skill.” W. Va. Code. R. § 127-2-3(3.8).

Nor does the Act represent West Virginia’s first effort

to address athletic participation by students whose gender

identity differs from their sex assigned at birth. Before

the Act, such questions were governed by a 2016 policy

adopted by the West Virginia Secondary Schools

Activities Commission (Commission). Under that policy,

transgender students of any sex could join teams

matching their gender identity if—but only if—their

school determined that “fair competition” would not be

impacted by the student’s participation. JA 4214. Any

other member school could appeal such determinations to

the Commission’s board of directors, which would decide

whether the student’s participation “would adversely

affect competitive equity or safety of teammates or

opposing players.” Id. In making its judgment, the board

was directed to consider the student’s “age,” “athletic

experience,” “strength, size, [and] speed,” “the nature of

the sport,” and “the degree to which fair competition

among high school teams would be impacted.” Id.

The Act worked a sea change in how West Virginia

decides which teams a student can participate on. Its first

15a

operative provision requires all public high school and

college sports teams be “expressly designated” as

“[m]ales, men, or boys”; “[f ]emales, women, or girls”; or

“[c]oed or mixed” and that the designations be “based on

biological sex.” W. Va. Code. § 18-2-25d(c)(1). The Act next

instructs that “[a]thletic teams or sports designated for

females, women, or girls shall not be open to students of

the male sex where selection for such teams is based upon

competitive skill or the activity involved is a contact

sport.” § 18-2-25d(c)(2). The Act’s final substantive

provision says it shall not be “construed to restrict the

eligibility of any student to participate in any . . . teams or

sports designated as ‘males,’ ‘men,’ or ‘boys’ or designated

as ‘coed’ or ‘mixed.’” § 18-2-25d(c)(3). The Act defines

“male” as “an individual whose biological sex determined

at birth is male,” “female” as “an individual whose

biological sex determined at birth is female,” and

“biological sex” as “an individual’s physical form as male

or female based solely on the individual’s reproductive

biology and genetics at birth.” § 18-2-25d(b)(1)–(3).

B.P.J. is currently in eighth grade. At birth, B.P.J.’s

sex was assigned as male, but she has publicly identified

as a girl since third grade. A month after the Act took

effect, B.P.J. sued the West Virginia State Board of

Education, its then-superintendent, the Harrison County

Board of Education, its superintendent, and the

Commission, arguing enforcement of the Act against her

violated the Equal Protection Clause and Title IX. The

State of West Virginia intervened as a defendant, and

B.P.J. filed an amended complaint.

During the initial stages of this litigation, the district

court granted a preliminary injunction, concluding B.P.J.

had shown “a likelihood of success in demonstrating that

16a

this statute [wa]s unconstitutional as it applie[d] to her

and that it violate[d] Title IX.” JA 440. The court

emphasized that B.P.J. only sought “relief . . . insofar as

this law applie[d] to her” (JA 442), and its grant of relief

was also so limited. Although they could have done so, see

28 U.S.C. § 1292(a)(1), the defendants did not appeal that

ruling. Since then, B.P.J. has participated in her school’s

cross country and track teams for girls, first under the

district court’s preliminary injunction and later under an

injunction pending appeal from this Court.

A year and a half later, the district court reversed

course. Ruling on the parties’ cross-motions for summary

judgment, the court rejected both of B.P.J.’s claims. On

B.P.J.’s equal protection claim, the court held that West

Virginia’s “definition of ‘girl’ as being based on ‘biological

sex’ [wa]s substantially related to the important

government interest of providing equal athletic

opportunities for females.” JA 4274–75. On B.P.J.’s Title

IX claim, the court pointed to regulations “authoriz[ing]

sex separate sports in the same manner as [the Act], so

long as overall athletic opportunities for each sex are

equal.” JA 4276. Because B.P.J. was still “permitted to try

out for boys’ teams,” the district court concluded her Title

IX challenge failed as well. JA 4277.

II.

We begin our review of the parties’ claims with two

procedural matters. First, we conclude we have appellate

jurisdiction because the district court entered a final

judgment against B.P.J. on all her claims against all

defendants. Second, we dismiss the Commission’s cross

appeal (No. 23-1130) because the Commission is not

aggrieved by the district court’s judgment but seeks to

defend a favorable judgment on alternative grounds.

17a

“We have an independent obligation to ensure that we

possess appellate jurisdiction.” Conway v. Smith Dev.,

Inc., 64 F.4th 540, 544 (4th Cir. 2023). The only source of

jurisdiction any party identifies here is 28 U.S.C. § 1291,

which lets us hear appeals from “final decisions.”

“Ordinarily, a district court order is not ‘final’ until it has

resolved all claims as to all parties.” Fox v. Baltimore City

Police Dep’t, 201 F.3d 526, 530 (4th Cir. 2000).

Now comes the wrinkle. As noted above, B.P.J.

brought multiple claims against multiple defendants.

Before the district court, one of those defendants—the

Commission— chose not to “argue the merits” and instead

“only” sought summary judgment on the ground “that it

is not a state actor and is therefore not subject to scrutiny

under either the Equal Protection Clause or Title IX.” JA

4261. The district court rejected that argument, and thus

denied the Commission’s motion for summary judgment,

while also denying B.P.J.’s summary judgment motion

and granting those filed by the remaining defendants. At

first glance, based solely on the district court’s summary

judgment opinion, it looks like we do not have an

appealable final decision because the court never disposed

of B.P.J.’s claims against the Commission.

But we “look to substance, not form” when deciding

whether we have an appealable final decision. Porter v.

Zook, 803 F.3d 694, 696 (4th Cir. 2015). As directed by

Federal Rule of Civil Procedure 58(a), the district court

issued “a separate document” setting out its judgment.

And in that document, the district court ordered “that

judgment be entered in accordance with [the]

accompanying Memorandum Opinion and Order, and that

this case be dismissed and stricken from the docket.” JA

4279 (emphasis added). To be sure, B.P.J. could have

18a

sought reconsideration of that judgment on the ground

that the district court’s summary judgment opinion did

not actually resolve her claims against the Commission.

But that does not matter for purposes of our jurisdiction.

Because the district court’s written judgment—unlike the

opinion it implemented—“resolved all claims as to all

parties” and terminated the district court phase of this

litigation, Fox, 201 F.3d at 530, we have appellate

jurisdiction.

Having concluded we have appellate jurisdiction

because the district court dismissed all B.P.J.’s claims

against all defendants, we dismiss the Commission’s cross

appeal (No. 23-1130) “as unnecessary and not properly

taken.” Harriman v. Associated Indus. Ins., 91 F.4th 724,

726 (4th Cir. 2024). The Commission’s notice of appeal

says it challenges “the ‘state actor’ and other related

determinations related to its summary judgment motion

as set forth in” the district court’s summary judgment

opinion. JA 4291. “But appellate courts review judgments,

not statements in opinions, and the judgment we review

here rejected [B.P.J.’s] entire suit on the merits.”

Harriman, 91 F.4th at 728 (quotation marks and citation

removed). To be sure, the Commission may defend its

favorable judgment “on any basis supported by the

record”—including arguments the district court rejected.

Id. Because the Commission is not aggrieved by the

district court’s judgment, however, the Commission has

no basis to appeal it.

III.

We turn next to various defendants’ arguments they

should not have been named in the suit. We conclude those

arguments lack merit.

19a

The Harrison County Board of Education (County

Board)—a defendant only on B.P.J.’s Title IX claim—

protests that it has no policy of excluding transgender

girls from girls sports teams and that it would merely be

complying with state law if it excluded B.P.J. from such

teams. But the County Board does not deny the only

pertinent facts: that it is a recipient of federal funds and

that it would, absent a judicial order to the contrary,

prevent B.P.J. from participating in girls teams—the very

thing B.P.J. claims violates Title IX. See Grimm v.

Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020)

(listing elements of Title IX claims). Federal law trumps

state law, not vice versa, see U.S. Const. art. VI, cl. 2, and

those who violate federal law cannot defend on the ground

they were simply following state law.

The County Board’s only response is to cite an out-ofcircuit decision addressing a different issue—municipal

liability under 42 U.S.C. § 1983. See Appellees’ Br. 53 n.*

(citing Bethesda Lutheran Homes & Servs., Inc. v. Leean,

154 F.3d 716, 718 (7th Cir. 1998)). But the reason a lack of

a municipal policy matters in that context is not because

compliance with state law is a defense to violating federal

law. Rather, it is because—under Section 1983—there can

be no municipal liability without establishing an “official

policy” or custom of that municipality. Monell v.

Department of Soc. Servs. of City of New York, 436 U.S.

658, 694 (1978). The County Board cites no authority for

the view that Title IX imposes a similar requirement.

Next, Harrison County superintendent Dora Stutler

asserts she would “at most . . . be subject to an injunction”

but cannot be found liable for “any monetary award” or

attorneys’ fees. Appellees’ Br. 54 n.*. That assertion has

no consequence at this stage, where no remedy has been

20a

imposed and we are reviewing a district court ruling that

all B.P.J.’s claims fail on the merits.

Finally, the Commission renews its argument that it

cannot be held liable for violating either the Equal

Protection Clause or Title IX. Like the district court, we

are unpersuaded.

To begin, we reject the Commission’s argument that it

is not a state actor and thus cannot violate the Equal

Protection Clause. West Virginia’s own highest court has

treated the Commission as a state actor for purposes of

federal and state constitutional challenges. See Israel v.

West Va. Secondary Schs. Activities Comm’n, 388 S.E.2d

480, 484 n.4 (W. Va. 1989) (federal and state constitutional

challenges); Jones v. West Va. State Bd. of Educ., 622

S.E.2d 289, 291 (W. Va. 2005) (state constitutional

challenge). We see no basis for a different conclusion.

Despite being a nominally private organization, the

Commission is “pervasive[ly] entwine[d]” enough with

public institutions to be subject to suit. Brentwood Acad.

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

298 (2001). The principals of every public secondary school

in West Virginia sit on the Commission’s governing board.

See W. Va. Code § 18-2-25(b). The Commission

comprehensively supervises and controls interscholastic

athletics among its member schools, including by

determining eligibility criteria for all interscholastic

athletics. And it does so under a West Virginia statute

authorizing schools to delegate “control, supervision, and

regulation of interscholastic athletic events” to the

Commission and designating dues paid to the Commission

by county boards of education as “quasi-public funds.” W.

Va. Code § 18-225(b). It is thus unsurprising that “[e]very

court that has considered the question [of ] whether

associations like the [Commission] are state actors” for

21a

the purpose of claims like these has answered that

question yes. Israel, 388 S.E.2d at 484 n.4.

The Commission’s argument that it cannot be sued

under Title IX fails for similar reasons. Title IX’s

prohibitions are not limited to organizations that directly

receive federal funds: the statute also covers

organizations that “control[] and manage[]” direct funding

recipients. Horner v. Kentucky High Sch. Athletic Ass’n,

43 F.3d 265, 272 (6th Cir. 1994) (emphasis removed); see

Williams v. Board of Regents of Univ. Sys. of Ga., 477

F.3d 1282, 1294 (11th Cir. 2007) (noting any other rule

would allow direct funding recipients to “avoid Title IX

liability” by “ced[ing] control over their programs to

indirect funding recipients”). And for essentially the same

reasons we conclude the Commission is a state actor, we

also conclude it exercises sufficient control over direct

funding recipients to make it a Title IX defendant. The

Commission’s contrary arguments—which are based on

decisions holding the NCAA is not subject to Title IX—

are unconvincing. See Appellees’ Br. 58–60 (citing Smith

v. NCAA, 266 F.3d 152, 156–57 (3d Cir. 2001)). Most

importantly, even those decisions note several key

differences between the NCAA and state athletic

associations, including that the NCAA spans every state

and that states had “delegated no power to the NCAA to

take specific action against any . . . employee.” Smith, 266

F.3d at 159–60. Unlike the Commission, the NCAA has no

statutory authority to control the athletic programs of its

member schools.

We also reject the Commission’s assertion that B.P.J.’s

claims against it are not ripe for adjudication because “the

possibility of injury is remote and the issues presented

abstract.” Appellees’ Br. 60. There is no question B.P.J.

wishes to participate in her school’s cross country and

22a

track teams for girls. And there is no question that—

absent a judicial order directing otherwise—the

Commission would update its enforcement policy to

conform to the Act’s requirements, thus preventing B.P.J.

from doing the very thing she seeks to do. Nothing more

is required to show ripeness.

IV.

We turn to the merits. The district court granted

summary judgment to the defendants on both B.P.J.’s

equal protection and Title IX claims. We review that

decision de novo. See Griffin v. Bryant, 56 F.4th 328, 335

(4th Cir. 2022). B.P.J. asks us to go further and hold the

district court erred in denying her motion for summary

judgment. We review that decision de novo as well. See

W.C. & A.N. Miller Dev. Co. v. Continental Cas. Co., 814

F.3d 171, 176 (4th Cir. 2016). Like the district court, we

“examine[] each motion separately, employing the

familiar standard under Rule 56 of the Federal Rules of

Civil Procedure.” Desmond v. PNGI Charles Town

Gaming L.L.C., 630 F.3d 351, 354 (4th Cir. 2011).

We conclude the district court erred in granting

summary judgment to the defendants on both of B.P.J.’s

claims. We also conclude that, while it would be

inappropriate to direct a grant of summary judgment to

B.P.J. on her equal protection claims, the district court

erred in not granting summary judgment to B.P.J. on her

Title IX claims. We thus vacate in part, reverse in part,

and remand with instructions to grant summary judgment

on B.P.J.’s Title IX claim and for further proceedings

consistent with this opinion.

We begin where the parties do: with B.P.J’s equal

protection claim. In so doing, we do not slight the maxim

23a

that courts should not “pass upon a constitutional question

. . . if there is also present some other ground upon which

the case may be disposed of.” Ashwander v. Tennessee

Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,

concurring). Because B.P.J has named different

defendants for her equal protection and Title IX claims,

there is no way to fully resolve this appeal without reaching

the constitutional question.

The essence of an equal protection claim is that at least

one person has been treated differently from another

without sufficient justification. See, e.g., Village of

Willbrook v. Olech, 528 U.S. 562, 564 (2000). For that

reason, our first step is to identify the differential

treatment that results from the Act.

The Act’s substantive provisions make three relevant

classifications. #1: All sports teams must be “expressly

designated” as male, female, or co-ed. W. Va. Code § 18-225d(c)(1). #2: A person’s male-ness or female-ness must

be determined “based solely on the individual’s

reproductive biology and genetics at birth.” § 18-225d(b)(1). #3: “[S]tudents of the male sex” are prohibited

from joining female teams but female students are not

barred from participating in any team. Compare § 18-225d(c)(2), with § 18-2-25d(c)(3).

The defendants insist that the only relevant

classification here is the first one and that this fact is fatal

to B.P.J.’s equal protection claim. The defendants

acknowledge that creating separate teams for boys and

girls is a sex-based distinction, which triggers

intermediate scrutiny under the Equal Protection Clause.

See, e.g., United States v. Virginia, 518 U.S. 515 (1996)

(VMI ). But, as the defendants note, B.P.J. has disavowed

24a

any “challenge [to] sex separation in sports,” insisting that

she “simply wants to play on the girls’ team like other

girls.” B.P.J. Br. 26–27. And this, the defendants say,

makes all the difference, because it shows “B.P.J. objects

to where the state legislature drew the line” between

which students can play on which team, “not the fact that

the line exists.” Appellees’ Br. 27.

But even when lines may—or must—be drawn, the

Constitution limits how and where they may fall. And

here, the way the State has chosen to implement its

decision to establish separate athletic teams for boys and

girls triggers another round of intermediate scrutiny

review for two independent reasons.

The first reason is the Act’s differing treatment of

cisgender girls and transgender girls. If B.P.J. were a

cisgender girl, she could play on her school’s girls teams.

Because she is a transgender girl, she may not. The Act

declares a person’s sex is defined only by their

“reproductive biology and genetics at birth.” § 18-225d(b)(1). The undisputed purpose—and the only effect—

of that definition is to exclude transgender girls from the

definition of “female” and thus to exclude them from

participation on girls sports teams. That is a facial

classification based on gender identity. And, under this

Court’s binding precedent, such classifications trigger

intermediate scrutiny. See Grimm v. Gloucester Cnty.

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

The defendants dispute this reading of Grimm,

claiming that case holds only that a difference in

treatment based on gender identity triggers heightened

scrutiny “when no genuine governmental interest

support[s] it.” Appellees’ Br. 51. In a similar vein, the

dissenting opinion argues intermediate scrutiny does not

apply because B.P.J. cannot show she is similarly situated

25a

to cisgender girls. That is not how equal protection review

works. To the contrary, decades of Supreme Court

precedent make clear that whether a particular

classification is supported by a good enough reason goes

to whether that classification satisfies the relevant level of

constitutional scrutiny—not which level of scrutiny

applies in the first place. See, e.g., Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 226–27 (1995) (race-based

classifications); VMI, 518 U.S. at 531 (sex-based

classifications). VMI provides a particularly telling

example: Because the challenged policy facially

discriminated based on sex, the Court applied

intermediate scrutiny without first asking whether the

policy was supported by a good enough reason or whether

men and women are similarly situated when it comes to

attending a physically rigorous military-style academy.

See 518 U.S. at 531.

The defendants also insist the Act does not

discriminate based on gender identity because it treats all

“biological males”—that is, cisgender boys and

transgender girls—the same. Appellees’ Br 21. But that is

just another way of saying the Act treats transgender

girls differently from cisgender girls, which is—literally—

the definition of gender identity discrimination.

That brings us to the second reason the defendants’

argument that no additional scrutiny is warranted since

the Act is a concededly “constitutional sex-based

classification” (Appellees’ Br. 25) fails: The Act contains a

second layer of sex-based classification beyond its

required separation of teams into those for “boys” and

those for “girls.” As its final substantive provision reveals,

the Act does not mandate that boys teams are open to boys

only and girls teams are open to girls only. Instead, by

providing it does not “restrict the eligibility of any

26a

student”—male or female—“to participate in any . . .

teams or sports designated as ‘males,’ ‘men,’ or ‘boys,’ ”

W. Va. Code § 18-2-25d(c)(3), the Act creates a rule that

people whose sex was assigned at birth as female may play

on any team but people whose sex was assigned at birth as

male may only play on male or co-ed teams. Put another

way, 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.1 To agree the Act is

a “constitutional sex-based classification,” we would have

to conclude this additional level of sex discrimination is

also justified.

To sum up: The Act triggers intermediate scrutiny for

three reasons. Because its first classification—its

requirement that all teams be designated male, female, or

co-ed—is conceded to be valid and is necessary to the

relief B.P.J. seeks (being allowed to participate in girls

cross country and track teams) we need go no further in

determining whether the State can justify it. But the Act

does not stop there. Instead, it mandates two further

classifications—one based on gender identity and the

other based on sex—that each forbid B.P.J. from doing

the thing she wants to do. For that reason, we must

To be sure, a regulation long predating the Act says people whose

sex was assigned at birth as female only have a right to play on a team

designated male if their school “sponsors no” female team in the

relevant sport. W. Va. Code. R. § 127-2-3(3.8). But— unlike the Act—

that regulation does not forbid schools from permitting students

whose sex was assigned as female at birth (including transgender

boys) from playing on any male team. And, in any event, the challenge

we consider here is against the Act, not the regulation, so it is the Act’s

classifications that must satisfy constitutional scrutiny.

27a

subject those classifications to intermediate scrutiny as

well.

Having determined the appropriate level of

constitutional scrutiny, we must next resolve a dispute

about the dimensions of our analytical frame. B.P.J. does

not ask us to hold the Act may not constitutionally be

applied to anyone in any circumstances. Instead, she

“challenges [the Act] only as applied to her” and seeks an

injunction that would prevent the defendants from

enforcing it against her. B.P.J. Br. 33

In the defendants’ view, B.P.J.’s efforts to limit the

scope of her challenge make no difference to our analysis.

Instead, they say that if applying the Act to the population

at large is substantially related to an important state

interest, the Act is constitutional—even if its application

to B.P.J. would not advance the asserted governmental

interests at all. In essence, the defendants claim there

really is no such thing as an as-applied equal protection

challenge because a plaintiff like B.P.J. can only win by

making the same showing needed to demonstrate the Act

is facially invalid. And to the extent that an as-applied

equal protection challenge even exists, the defendants

argue that its as-appliedness goes only to the remedy

B.P.J. may obtain rather than the showing she must make

to secure relief.

The problem with that argument: The Supreme Court

has repeatedly held a statute can violate the Equal

Protection Clause as applied to some without being

facially invalid. In Caban v. Mohammed, 441 U.S. 380

(1979), and Lehr v. Robertson, 463 U.S. 248 (1983), for

example, the Court considered equal protection

challenges to statutes giving unwed fathers fewer rights

28a

than unwed mothers to prevent the adoption of their child.

In both decisions, the Supreme Court concluded those

sorts of laws would be valid in situations where “the father

had not come forward to participate in the rearing of [the]

child” but that they “may not constitutionally be applied

in that class of cases where the mother and father are in

fact similarly situated with regard to their relationship

with the child.” Lehr, 463 U.S. at 267 (citing Caban, 441

U.S. at 380, 392) (quotation marks removed and emphasis

added).

The Supreme Court’s decision in City of Cleburne v.

Cleburne Living Center, 473 U.S. 432 (1985), is similar.

That case involved an equal protection challenge to a

zoning ordinance requiring a special use permit for group

homes for people with intellectual disabilities. See id. at

435. Although the plaintiff brought both facial and asapplied claims, the Court specifically declined “to decide

whether the special use permit provision [was] facially

invalid.” Id. at 436. Instead, it held that “the ordinance

[was] invalid as applied in this case” because “the record

[did] not reveal any rational basis for believing that” the

specific group home the plaintiff proposed to operate

“would pose any special threat to the city’s legitimate

interests.” Id. at 448 (emphasis added); accord id. at 456,

474 (Marshall, J., concurring in the judgment in part and

dissenting in part) (noting that the Court had invalidated

the ordinance “only as applied to respondents, rather than

on its face” based on the conclusion “that the ordinance

might be ‘rational’ as applied to some subgroup” of people

with intellectual disabilities). Indeed, the Cleburne Court

described such an as-applied challenge as “the preferred

course of adjudication since it enables courts to avoid

making unnecessarily broad constitutional judgments.”

Id. at 447.

29a

The defendants respond by quoting the Supreme

Court’s statement in Bucklew v. Precythe, 139 S. Ct. 1112

(2019), that “classifying a lawsuit as facial or as-applied …

does not speak at all to the substantive rule of law

necessary to establish a constitutional violation.” Id. at

1127. True enough. But the same sentence the defendants

quote refutes their argument that the fact a plaintiff is

bringing an as-applied challenge goes only to the “relief”

a court may grant. Appellees’ Br. 33, 35, 36. Rather, as

Bucklew states—consistent with Caban, Lehr, and

Cleburne—B.P.J.’s decision to bring only an as-applied

challenge also “affects the extent to which the invalidity of

the challenged law must be demonstrated.” Bucklew, 139

S. Ct. at 1127; accord Carolina Youth Action Project v.

Wilson, 60 F.4th 770, 782 (4th Cir. 2023) (whether a

challenge is facial or as applied affects “how much we

consider

plaintiffs’

particular

identity

and

circumstances”).

The defendants also make a more conceptual

argument. As they see it, letting B.P.J. bring an as-applied

challenge would improperly “convert[ ] intermediate

scrutiny into strict” by allowing any party to whom

application of a law would not advance the State’s

interests to obtain a judicially ordered exception.

Appellees’ Br. 36.

That argument fails to convince, too. Most importantly,

it cannot be squared with Cleburne, where the Supreme

Court entertained—and sustained—an as-applied equal

protection challenge despite holding that an even lower

substantive standard (rational-basis review) applied to the

type of classification at issue. 473 U.S. at 447–48.

The defendants’ argument falls short for other reasons

as well. For one, it ignores the different consequences that

follow when a plaintiff prevails in a facial challenge versus

30a

an as-applied one. When a court holds a statute is facially

unconstitutional, the result is that the statute cannot be

applied to anyone—even if it could hypothetically be

“implemented in a manner consistent with the

Constitution.” Washington State Grange v. Washington

State Republican Party, 552 U.S. 442, 451 (2008). In

contrast, winning an as-applied challenge does not impact

the state’s ability to apply its law to other parties if doing

so would advance the relevant interests. See Cleburne, 473

U.S. at 447. Indeed, the injunction B.P.J seeks is the same

one she received at the preliminary injunction stage: one

limited to her.

Finally, even when a plaintiff brings an as-applied

challenge, a defendant may prevail by showing that its

refusal to make an exception for the plaintiff’s individual

circumstances itself satisfies the relevant level of

constitutional scrutiny. In United States v. Lee, 455 U.S.

252 (1982), for example, the Supreme Court rejected an

as-applied challenge to a provision of the tax code

requiring employers to pay social security taxes. See id. at

254. Lee did not examine the strength of the government’s

interest in applying that requirement to the specific

plaintiff before it. Instead, the Court explained “it would

be difficult to accommodate the comprehensive social

security system with myriad exceptions flowing from a

wide variety of religious beliefs.” Id. at 259–60; accord

Faver v. Clarke, 24 F.4th 954 (4th Cir. 2022) (prison’s

requirement that all items stocked in commissary be

sourced from a single supplier was narrowly tailored to its

compelling interest in preventing contraband, regardless

of prisoner’s individual circumstances).

We now turn to the ultimate merits question for

B.P.J.’s equal protection challenge: Is the decision to

31a

exclude B.P.J. from the teams she seeks to join

substantially related to an important government

interest? The district court concluded B.P.J. failed to

create a genuine dispute of material fact on this point, and

thus granted summary judgment to the defendants. We

disagree and vacate that aspect of the district court’s

judgment.

During this litigation, the defendants have identified

two general justifications for excluding transgender girls

from girls sports teams: participant safety and

competitive fairness. See Oral Arg. 20:13–21:05

(disclaiming reliance on any other potential interests,

including privacy or bodily autonomy). B.P.J. does not

dispute that participant safety and competitive fairness

are important government interests; instead, she argues

that excluding her from the girls cross country and track

teams is not substantially related to either goal. For their

part, the defendants do not seriously assert that excluding

B.P.J. (or any other transgender girl) from cross country

and track—both non-contact sports—is substantially

related to the government’s important interest in

participant safety. See Oral Arg. 20:50–21:19

(acknowledging that their defense against B.P.J.’s asapplied equal protection challenge “doesn’t focus on

safety”). So, as the defendants acknowledge, the central

question for B.P.J’s as-applied equal protection challenge

is whether excluding her from the girls cross country and

track teams is substantially related to the concededly

important government interest in competitive fairness.

See Oral Arg. 21:19–21:23.

At minimum, the district court erred in concluding the

defendants were entitled to summary judgment on this

point. For purposes of assessing the defendants’ summary

judgment motion, we must assume a factfinder would

32a

credit all B.P.J.’s evidence and resolve all disputed factual

issues in her favor. See, e.g., Knibbs v. Momphard, 30

F.4th 200, 215 (4th Cir. 2022). This matters because B.P.J.

presented evidence that transgender girls with her

background and characteristics possess no inherent,

biologically-based competitive advantages over cisgender

girls when participating in sports.

We note at the outset an argument the defendants have

avoided making directly and specifically disclaimed at oral

argument that nonetheless forms the basis for much of the

dissenting opinion. The argument is one via definition. It

starts by positing that girls’ sports are exclusively for the

benefit of cisgender girls (and, it seems, transgender

boys). So, it follows, regardless of whether any given

transgender girl has any inherent competitive advantage

over cisgender girls in athletic performance, the

government may exclude all transgender girls from all

girls teams because it is the only way to ensure no

cisgender girl ever has to compete against (and thus risk

finishing behind) a transgender girl.

That argument is deeply flawed. For one thing, limiting

the beneficiaries of the State’s largesse “begs the

question” of whether the challenged classification is

justified in the first place. Mississippi Univ. for Women

v. Hogan, 458 U.S. 718, 731 n.17 (1982). A State’s decision

to create a classification that benefits only one class at the

expense of others must itself be “substantially related to

achieving a legitimate and substantial goal.” Id. Without

more, the defendants may not simply posit that all

cisgender girls are entitled to be protected from

competition from all transgender girls, even when the

result is harm to transgender girls.

To see why this argument cannot be right, imagine a

sixth-grade cisgender girl who competes on her middle

33a

school’s track team. Based on her consistent times

throughout the season, she is projected to finish in 15th

place at the season-end countywide track meet. But then,

the week before the county meet, a new family moves into

the county, bringing a girl of the same age who also runs

track. As a result, the first girl is now projected to finish

in 16th place. Would a State be able to justify otherwise

unconstitutional discrimination based on an asserted

interest in protecting the first girl’s anticipated 15th place

finish?

Of course not. As the defendants conceded at oral

argument, the government has no interest in protecting

one girl’s ranking in any competition or “in ensuring that

cisgender girls do not lose ever to transgender girls.” Oral

Arg. 23:35–24:05. True, West Virginia has an interest in

preventing “athletic opportunities for women” from being

“diminished” by substantial displacement. Clark v.

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

Cir. 1982). But for that interest to carry any weight, the

defendants must show the alternative is actually and

meaningfully unfair—i.e., that there is “a substantial

relationship between the exclusion of ” all transgender

girls from all girls teams and “providing equal

opportunities for women.” Id. (emphasis added). We thus

turn to that question.

Before the district court, both sides cited authorities

agreeing that the driver of the most significant sex-based

differences in athletic performance is differing levels of

circulating testosterone. Larger amounts of circulating

testosterone produce an increased ability to build muscle

mass. And increased muscle mass, in turn, leads to greater

strength and speed—two attributes relevant to most

competitive sports.

34a

Before puberty, circulating testosterone levels do not

vary significantly depending on whether a person has two

X chromosomes, one X and one Y chromosome, or some

other genetic makeup. Once puberty begins, however, sexbased differences begin to emerge. Those differences—

along with others that begin at the same time—lead to

different physical processes during puberty. These

differences manifest at what medical professionals call the

“Tanner 2” stage.

The undisputed evidence shows B.P.J. has never gone

through the Tanner 2 stage. As part of her treatment for

gender dysphoria, B.P.J. began receiving puberty

blocking treatment at the beginning of that stage. The

medication prevented B.P.J. from progressing through

the Tanner 2 stage, and as a result, B.P.J. has never

experienced elevated levels of circulating testosterone. In

addition, B.P.J. is receiving gender affirming hormone

therapy, which, based on her expert testimony, will cause

her to experience physical changes to her bones, muscles,

and fat distribution that are typically experienced by

cisgender girls. Because B.P.J. has never felt the effects

of increased levels of circulating testosterone, the fact that

those who do benefit from increased strength and speed

provides no justification— much less a substantial one—

for excluding B.P.J. from the girls cross country and track

teams.

That leaves one final question for purposes of B.P.J.’s

as-applied equal protection challenge: Even without

undergoing Tanner 2 stage puberty, do people whose sex

is assigned as male at birth enjoy a meaningful

competitive athletic advantage over cisgender girls?

We conclude there is a genuine dispute of material fact

about this question, and that the district court therefore

erred in granting summary judgment against B.P.J. on

35a

her equal protection claim. B.P.J. provided an expert

report stating that—other than the puberty-based

changes she will never experience—“[a] person’s genetic

makeup and internal and external reproductive anatomy

are not useful indicators of athletic performance.” JA

2104. The report also states that, “[w]ith respect to

average athletic performance, girls and women who are

transgender and who do not go through . . . puberty are

somewhat similarly situated to women with XY

chromosomes who have complete androgen insensitivity

syndrome”—a group “long . . . recognized” to “have no

athletic advantage simply by virtue of having XY

chromosomes.” Id. To be sure, the defendants moved to

exclude that testimony. But the district court never ruled

on that motion, so it could not ignore that conclusion for

purposes of ruling on the defendants’ summary judgment

motion. See, e.g., Norse v. City of Santa Cruz, 629 F.3d

966, 973 (9th Cir. 2010) (en banc) (district court must

resolve “evidentiary objections that are material to its

ruling” on motion for summary judgment). And although

the defendants offered their own contrary evidence as

well, Rule 56 required the district court to resolve that

factual dispute in B.P.J.’s favor when deciding whether to

grant summary judgment against her. See Knibbs, 30

F.4th at 215. For that reason, the district court erred in

granting summary judgment to the defendants on B.P.J.’s

equal protection claim.2

The circumstances before the Act was passed further undermine

the defendants’ assertion that the State’s chosen means are

substantially related to its interest in ensuring competitive fairness.

The Commission—to which every West Virginia public school

delegates responsibility for regulating eligibility for athletics—

already had a policy addressing participation by transgender

students. Unlike the Act’s categorical rule, that policy was narrowly

focused on the interests the State claims the Act advances—

36a

The same factual dispute explains why we decline to

direct the district court to enter summary judgment in

B.P.J.’s favor. The defendants submitted an expert report

contradicting the assertions by B.P.J.’s experts and

saying that, even apart from increased circulating

testosterone levels associated with puberty, there are

“significant physiological differences, and significant male

athletic performance advantages in certain areas.” JA

2514. Here too, B.P.J. moved to exclude that expert’s

testimony, and offered evidence to rebut it. But the

district court never ruled on the motion to exclude. That

means we could not grant B.P.J.’s requested relief without

doing one of two things: (1) ruling on a Daubert motion the

district court never ruled on (which could allow us to

disregard the defendants’ expert); or (2) accepting the

defendants’ expert’s conclusions as true but concluding

B.P.J. is still entitled to summary judgment. X

We conclude neither step is warranted. For the first,

questions about the admissibility of evidence are uniquely

within the province of trial courts, and we review such

decisions only for abuse of discretion. See, e.g., Nease v.

Ford Motor Co., 848 F.3d 219, 228 (4th Cir. 2017). For that

reason, appellate courts rarely—if ever—resolve a

disputed evidentiary issue in the first instance. See, e.g.,

Fox v. Maulding, 16 F.3d 1079, 1082 (10th Cir. 1994)

(declining to decide “in the first instance” an issue that

competitive fairness and safety. See pp. 8–9, supra (describing former

policy). As the district court noted, “[t]he record makes abundantly

clear . . . that West Virginia had no ‘problem’ with transgender

students . . . creating unfair competition or unsafe conditions” before

the Act passed because “at the time it passed the law, West Virginia

had no known instance of any transgender person playing school

sports.” JA 4264. For that reason, the district court aptly described

the Act as “at best a solution to a potential, but not yet realized

‘problem.’ ” Id.

37a

would be reviewed only for abuse of discretion on appeal

because to do so would “enter the realm of de novo

review”).

As for the second possibility: Once the defendants’

expert is considered, the same principles that lead us to

conclude the district court erred in granting the

defendants’ summary judgment motion make us reluctant

to order the district court to grant B.P.J.’s. For purposes

of considering B.P.J.’s summary judgment motion, we

must assume a factfinder would credit the defendants’

evidence over B.P.J.’s. And although portions of B.P.J.’s

briefs in this Court assert that even a significant

advantage in athletic performance would not justify

excluding her from the girls cross country and track

teams, B.P.J. does not develop that argument and focuses

instead on arguing that no such advantage exists or is

minimal—the very thing the experts disagree about.

For that reason, we conclude the district court erred in

granting summary judgment to the defendants on B.P.J.’s

equal protection claim but decline to direct the entry of

summary judgment in B.P.J.’s favor. Instead, we vacate

that portion of the district court’s judgment and remand

for further proceedings, including consideration of the

still-pending Daubert motions.

We turn next to B.P.J.’s Title IX challenge. Although

much of what we have already said bears on our analysis

here, the details are different, and we arrive at a

somewhat different conclusion. Here too, we conclude the

district court erred in granting summary judgment to the

defendants. But we also conclude B.P.J. has shown

applying the Act to her would violate Title IX, and the

district court thus erred in denying her motion for

38a

summary judgment. For that reason, we reverse this

portion of the district court’s order and remand with

instructions to enter summary judgment for B.P.J. and

conduct remedial proceedings on her Title IX claim.

Title IX says “[n]o person . . . shall, on the basis of sex,

be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any education

program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). The defendants do not

dispute that middle school sports are an “education

program or activity.” Three defendants named in B.P.J.’s

Title IX claim (the State of West Virginia, the State Board

of Education, and the County Board) also do not deny they

receive federal financial assistance, and we have already

concluded the fourth (the Commission) may be sued under

Title IX because it controls entities that receive such

assistance. See Part III, supra. The only remaining

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. 20 U.S.C. § 1681(a).

We conclude the answer is yes. Although Title IX and

equal protection claims are similar, they are “not . . .

wholly congruent.” Fitzgerald v. Barnstable Sch. Comm.,

555 U.S. 246, 257 (2009). For one thing, not every act of

sex-based classification is enough to show legally relevant

“discrimination” for purposes of Title IX. Instead, under

Title IX, “discrimination ‘mean[s] treating [an] individual

worse than others who are similarly situated.’ ” Grimm,

927 F.3d at 618 (first alteration in original) (emphasis

added) (quoting Bostock v. Clayton Cnty., 140 S. Ct. 1731,

1740 (2020)). In addition, even having experienced worse

treatment than a similarly situated comparator is not

enough to prevail on a Title IX claim. Rather, a plaintiff

39a

must establish that the “improper discrimination caused

[her] harm.” Id. at 616. On the other hand, once a Title IX

plaintiff shows she has been discriminated against in the

relevant sense and suffered harm, no showing of a

substantial relationship to an important government

interest can save an institution’s discriminatory policy.

See Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll., 600 U.S. 181, 309 (2023)

(Gorsuch, J., concurring) (noting that Title VI, whose

language Title IX mirrors, “does not direct courts to

subject these classifications to one degree of scrutiny or

another”).

Because B.P.J. can show both worse treatment based

on sex and resulting harm, she has established each of the

disputed requirements for a Title IX claim. First, the Act

operates “on the basis of sex” for two reasons that should

be familiar by now. For one, this Court has already held

that discrimination based on gender identity is

discrimination “on the basis of sex” under Title IX, see

Grimm, 972 F.3d at 616, and this Act discriminates based

on gender identity, see Part IV(A)(1), supra. The Act also

discriminates based on sex assigned at birth by forbidding

transgender girls—but not transgender boys—from

participating in teams consistent with their gender

identity. See id. The Act thus goes beyond even what this

Court concluded was impermissible in Grimm: Under this

Act, a transgender boy like Gavin Grimm may play on

boys teams but a transgender girl like B.P.J. may not play

on girls teams.

Second, the Act requires treating students differently

even when they are similarly situated. The Act forbids

one—and only one—category of students from

participating in sports teams “corresponding with [their]

gender”: transgender girls. Grimm, 972 F.3d at 618. And

40a

it does so on a categorical basis, regardless of whether any

given girl possesses any inherent athletic advantages

based on being transgender. See Peltier v. Charter Day

Sch., Inc., 37 F.4th 104, 130 (4th Cir. 2022) (en banc)

(emphasizing that “Title IX protects the rights of

individuals, not groups” (quotation marks removed)).

Third, B.P.J. has established that she is harmed by the

Act’s application to her— both in terms of what the Act

forbids her from doing and what it would require if she

wants to gain the opportunity to participate in school

sports. For starters, “emotional and dignitary harm . . . is

legally cognizable under Title IX” and it requires no feat

of imagination to appreciate “[t]he stigma of being” unable

to participate on a team with one’s friends and peers.

Grimm, 972 F.3d at 617–18.

But the Act goes further by requiring B.P.J. to take on

additional harms to avoid forfeiting the ability to play

school sports altogether. B.P.J. has been publicly living as

a girl for more than five years. During that time, her

elementary and middle schools created gender support

plans to affirm her gender identity and ensure she is

recognized as a girl at school. To align with her gender

identity, B.P.J. has changed her name, and the State of

West Virginia (whose Act is challenged here) has issued a

birth certificate that recognizes her changed name and

lists her sex as female. B.P.J. also takes puberty blocking

medication to prevent her body from experiencing male

adolescent development and estrogen hormone therapy,

which is leading her to develop the outward physical

characteristics—including fat distribution, pelvic shape,

and bone size—of an adolescent female. Her family,

teachers, and classmates have all known B.P.J. as a girl

for several years, and—beginning in elementary school—

she has participated only on girls athletic teams.

41a

Given these facts, offering B.P.J. a “choice” between

not participating in sports and participating only on boys

teams is no real choice at all. The defendants cannot

expect that B.P.J. will countermand her social transition,

her medical treatment, and all the work she has done with

her schools, teachers, and coaches for nearly half her life

by introducing herself to teammates, coaches, and even

opponents as a boy. The defendants do not dispute that

doing so would directly contradict the treatment protocols

for gender dysphoria. It also would expose B.P.J. to the

same risk of unfair competition—and, in some sports,

physical danger—from which the defendants claim to be

shielding cisgender girls. By participating on boys teams,

B.P.J. would be sharing the field with boys who are larger,

stronger, and faster than her because of the elevated

levels of circulating testosterone she lacks. The Act thus

exposes B.P.J. to the very harms Title IX is meant to

prevent by effectively “exclud[ing]” her from

“participation in” all non-coed sports entirely. 20 U.S.C. §

1681(a).

Rather than trying to show B.P.J. is not harmed by the

Act, the defendants offer several arguments that

emphasize the historical expectations surrounding Title

IX’s application and the regulations that have

implemented it. But legislators’ “expected applications” of

a statute “can never defeat unambiguous statutory text.”

Bostock, 140 S. Ct. at 1750. And “because a regulation

must be consistent with the statute it implements, any

interpretation of a regulation naturally must accord with

the statute as well.” Kentuckians for Commonwealth, Inc.

v. Rivenburgh, 317 F.3d 425, 440 (4th Cir. 2003) (quotation

marks removed).

True, regulations introduced soon after Title IX’s

enactment say recipients of federal funds “may operate . .

42a

. separate teams for members of each sex.” 34 C.F.R. §

106.41(b). But, once again, B.P.J. does not challenge the

legality of having separate teams for boys and girls.

Instead, she challenges the Act’s requirement that she

may compete only on boys or coed teams—even though

doing so treats her differently than people to whom she is

similar situated, would contradict her gender identity, and

would cause her significant harm. The regulations the

defendants cite do not purport to address this situation,

and they are being reevaluated with an eye toward doing

so. See Nondiscrimination on the Basis of Sex in

Education Programs or Activities Receiving Federal

Financial Assistance: Sex-Related Eligibility Criteria for

Male and Female Athletic Teams, 88 Fed. Reg. 22860

(proposed Apr. 13, 2023) (to be codified at 34 C.F.R. §

106.41). For that reason, the defendants’ emphasis on the

regulations as expressly authorizing the Act’s chosen

discrimination is misguided.

Finally, the district court erred in rejecting B.P.J.’s

Title IX claim on the theory that, under the Act, “overall

athletic opportunities for each sex are equal.” JA 4276. As

our en banc Court has explained, “Title IX protects the

rights of individuals, not groups, and does not ask whether

the challenged policy treats [one sex] generally less

favorably than [the other].” Peltier, 37 F.4th at 130

(quotation marks removed). For the same reason, whether

other transgender girls undergo different “medical

intervention[s]” that prevent them from being “similarly

situated” to cisgender girls for purposes of participating

in sports, JA 4277, is irrelevant to B.P.J.’s individual case.

B.P.J. has shown that applying the Act to her would treat

her worse than people to whom she is similarly situated,

43a

deprive her of any meaningful athletic opportunities, and

do so on the basis of sex. That is all Title IX requires.3

***

We do not hold that government officials are forbidden

from creating separate sports teams for boys and girls or

that they lack power to police the line drawn between

those teams. We also do not hold that Title IX requires

schools to allow every transgender girl to play on girls

teams, regardless of whether they have gone through

puberty and experienced elevated levels of circulating

testosterone. We hold only that the district court erred in

granting these defendants’ motions for summary

judgment in this particular case and in failing to grant

summary judgment to B.P.J. on her specific Title IX

claim.

The cross-appeal (No. 23-1130) is dismissed. In No. 231078, the district court’s judgment is vacated in part and

reversed in part. The case is remanded with instructions

to enter summary judgment for B.P.J. on her Title IX

claims and for further proceedings (including remedial

proceedings) consistent with this opinion.

SO ORDERED

We decline to consider any argument that we should artificially

narrow our interpretation of Title IX because it is Spending Clause

legislation. Although such arguments have been made and rejected in

other cases, see, e.g., Grimm, 972 F.3d at 619 n.18, the defendants

have never made such an argument in this case.

44a

AGEE, Circuit Judge, concurring in part and

dissenting in part:

I agree with the majority that we have jurisdiction over

this appeal, that the Commission had no basis to appeal

from the district court’s decision, and that all of the

defendants (collectively, “West Virginia”) were properly

named in this action. I cannot join the rest of the

majority’s opinion, however, because West Virginia may

separate its sports teams by biological sex without

running afoul of either the Equal Protection Clause or

Title IX. In coming to the opposite conclusion, the

majority inappropriately expands the scope of the Equal

Protection Clause and upends the essence of Title IX.

Therefore, I dissent from all but Parts II and III of the

majority opinion.

In 2021, West Virginia enacted § 18-2-25d (the “Act”)

to promote equal opportunities for women in sports.

Noting the “inherent differences between biological males

and biological females,” the Act provides that

“[i]interscholastic, intercollegiate, intramural, or club

athletic teams or sports that are sponsored by any public

secondary school or a state institution of higher education

. . . shall be expressly designated as [either male, female,

or coed] based on biological sex” and that “[a]thletic teams

or sports designated for females, women, or girls shall not

be open to students of the male sex where selection for

such teams is based upon competitive skill or the activity

involved is a contact sport.” W. Va. Code § 18-2-25d.

“Female” is defined under the Act as “an individual whose

biological sex determined at birth is female” and “male” is

defined as “an individual whose biological sex determined

at birth is male.” Id.

45a

Consistent with the Act, B.P.J.—a biological boy who

identifies as a girl—was excluded from the middle school

girls’ track-and-field and cross-country teams.

Disagreeing with that result, B.P.J. brought this action,

alleging that the Act violates the Equal Protection Clause

and Title IX as applied to B.P.J. and transgender girls like

B.P.J. who have not gone through endogenous puberty.

Although the district court agreed with B.P.J. at the

preliminary injunction stage, with the benefit of a

developed record, the district court determined in its

summary judgment decision that the Act violates neither

the Equal Protection Clause nor Title IX. See B.P.J. v. W.

Va. State Bd. of Educ., 649 F. Supp. 3d 220 (S.D.W. Va.

2023).

Regarding the equal protection claim, the court

acknowledged that “[t]here is no debate that intermediate

scrutiny applies to the law at issue here” because it

“plainly separates student athletes based on sex.” Id. at

229. But it explained that preventing “biological males[]

from playing on girls’ teams is not unconstitutional if the

classification is substantially related to an important

government interest.” Id. at 230. And it concluded that,

here, the government’s interest in “providing equal

athletic opportunities for females” satisfied that standard.

Id. at 231.

As for the Title IX claim, the district court reasoned

that B.P.J. was not similarly situated to biological girls

because “biological males are not similarly situated to

biological females for purposes of athletics.” Id. at 233.

The court also noted that “Title IX authorizes sex separate

sports in the same manner as [the Act], so long as overall

athletic opportunities for each sex are equal.” Id.

B.P.J. appealed. Pending that appeal, a majority of this

panel granted B.P.J. an injunction, allowing B.P.J. to

46a

participate on the middle school’s girls’ track-and-field

team for the spring season.

As West Virginia explained in its motion to stay the

injunction, throughout the spring season, B.P.J.

dominated track meets. Rather than finishing near the

back of the pack—as B.P.J. contended would be the case

in the motion for the injunction—B.P.J. consistently

placed in the top fifteen participants at track-and-field

events and often placed in the top ten. In so doing, over

one hundred biological girls participating in these events

were displaced by and denied athletic opportunities

because of B.P.J. Additionally, B.P.J. earned a spot at the

conference championship in both shot put and discus.

Because participation in a conference championship event

requires that the athlete place in the top three competitors

at their school, judged by their best performance that

season, two biological girls were denied participation in

the conference championships because of B.P.J.

II.

The majority holds that the Act may violate the Equal

Protection Clause and conclusively violates Title IX. I

disagree.1

I note at the outset that there are few cases involving transgender

discrimination and the cases that exist are limited to their specific

contexts. For example, in Bostock v. Clayton Cnty., the Supreme

Court considered whether an employer’s termination of employees on

the basis of their transgender or homosexual status violated Title VII.

590 U.S. 644, 653 (2020). In determining that it did, the Court

explicitly limited its decision to Title VII and the employment context.

See id. at 681 (“[W]e do not purport to address bathrooms, locker

rooms, or anything else of the kind.”).

Similarly, in Grimm v. Gloucester Cnty. Sch. Bd., this Court

considered whether a restroom policy that limited the use of male and

female restrooms to the corresponding biological sexes violated the

47a

Assessing the equal protection claim, the majority

concludes that the Act discriminates against B.P.J., but

remands B.P.J.’s claim because it believes a factual

dispute prevents determining whether the Act survives

heightened scrutiny. Its analysis is flawed for at least

three reasons: the majority (1) without explanation,

erroneously concludes that B.P.J.—a biological boy—is

similarly situated to biological girls; (2) incorrectly

determines that the Act discriminates against

transgender athletes on its face; and (3) inaccurately

decides that the Act may not be substantially related to

West Virginia’s important government interest in

ensuring equal opportunities for females as applied to

B.P.J.

First, the majority fails to grapple with the similarly

situated element of B.P.J.’s equal protection claim and, in

so doing, erroneously implies that biology is irrelevant to

sports. The Equal Protection Clause is “essentially a

direction that all persons similarly situated should be

treated alike.” City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985). To prove an equal protection

violation, the plaintiff must identify persons materially

identical to him or her who has received different

treatment. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)

(stating that the Equal Protection Clause prevents

“governmental decisionmakers from treating differently

Equal Protection Clause and Title IX. 972 F.3d 586, 593 (4th Cir.

2020). Its analysis necessarily applied only to restroom policies. See

id.

Neither decision, therefore, answers the question before the

Court today.

48a

persons who are in all relevant respects alike.” (emphasis

added)).

But B.P.J. cannot make such a showing because it is

beyond dispute that biological sex is relevant to sports and

therefore that the person who is “in all relevant respects

alike” to a transgender girl is a biological boy. It is

undisputed that after puberty biological males have

physiological advantages over biological females that

significantly impact athletic performance. See Opening

Br. 14 (“[M]edical consensus is that the largest known

biological cause of average differences in athletic

performance between cisgender men as a group and

cisgender women as a group is their levels of circulating

testosterone, which start to diverge between boys and

girls beginning with puberty.”); 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) (“[I]t is

neither myth nor outdated stereotype that there are

inherent differences between those born male and those

born female and that those born male, including

transgender women and girls, have physiological

advantages in many sports.”). Indeed, “[i]n tangible

performance terms, studies have shown that these

[biological] differences allow post-pubescent males to

‘jump (25%) higher than females, throw (25%) further

than females, run (11%) faster than females, and

accelerate (20%) faster than females’ on average.” Adams,

57 F.4th at 820 (Lagoa, J., specially concurring) (citation

omitted).

Although B.P.J. has not gone through puberty, the

majority recognizes that there is evidence that biological

boys have a competitive advantage over biological girls

even before puberty. See ante at 30 (“The defendants

submitted an expert report contradicting the assertions

49a

by B.P.J.’s experts and saying that, even apart from

increased circulating testosterone levels associated with

puberty, there are ‘significant physiological differences,

and significant male athletic performance advantages in

certain areas.’” (citation omitted)). And the evidence cited

earlier as to B.P.J.’s actual displacement of multiple

biological girls despite being on puberty blockers shows

that this evidence of a biological advantage is particularly

apt in this case.

It seems axiomatic that because biology provides a

competitive advantage in sports, biology is a significantly

relevant characteristic for the similarly situated analysis.

Yet, for reasons unknown, the majority concludes that

B.P.J.—a biological boy—is nonetheless similarly situated

to biological girls. By so holding—despite evidence that

B.P.J. may have a distinct biological advantage over

biological girls—the majority necessarily must have

determined that transgender girls are similarly situated

to biological girls regardless of the competitive advantage

they may have. It must be, then, that the majority

considers gender identity the only relevant factor when

determining the individuals with whom B.P.J. is similarly

situated. That is plainly incorrect.

It is not enough—and is actually irrelevant when it

comes to competitive sports— that B.P.J. identifies as a

girl. Gender identity, simply put, has nothing to do with

sports. It does not change a person’s biology or physical

characteristics. It does not affect how fast someone can

run or how far they can throw a ball. Biology does. The

majority was therefore wrong to conclusively determine

that B.P.J. is similarly situated to biological girls based on

B.P.J.’s gender identity alone. See Nguyen v. INS, 533

U.S. 53, 73 (2001) (“To fail to acknowledge even our most

50a

basic biological differences . . . risks making the guarantee

of equal protection superficial, and so disserving it.”).2

The majority, tellingly, failed to provide any similarly situated

analysis. It instead perplexingly states that the Court need not

determine whether B.P.J. is similarly situated to biological girls prior

to determining the appropriate level of scrutiny. See ante at 19. The

majority misunderstands the equal protection inquiry.

It is not that the Court cannot determine the appropriate level of

scrutiny before determining that B.P.J. is similarly situated to

biological girls; it is that the Court cannot determine that any

discrimination has occurred until it determines with whom B.P.J. is

similarly situated. To find that West Virginia discriminated against

B.P.J., the Court must conclude that B.P.J. was treated differently

than the similarly situated group. See Morrison v. Garraghty, 239

F.3d 648, 654 (4th Cir. 2001) (“To succeed on an equal protection

claim, a plaintiff must first demonstrate that he has been treated

differently from others with whom he is similarly situated[.]”). If

B.P.J. is not similarly situated to biological girls, then it is of no

consequence that B.P.J. is treated differently than them. See

Nordlinger, 505 U.S. at 10 (“The Equal Protection Clause does not

forbid classifications. It simply keeps governmental decisionmakers

from treating differently persons who are in all relevant respects

alike.”). Consequently, only after the Court concludes that an

individual was treated differently does the Court determine the

applicable level of scrutiny. The similarly situated analysis thus

necessarily precedes any level of review.

It’s true that in United States v. Virginia, which the majority uses

to support its flawed similarly situated contention, the Supreme Court

did not explicitly discuss whether women were similarly situated to

men when determining whether Virginia could lawfully exclude

women from admission to the Virginia Military Institute. 518 U.S. 515

(1996). Nonetheless, it is clear throughout the opinion that the

Supreme Court had implicitly come to that conclusion. See, e.g., id. at

530 (stating that the question before the Court was whether

“Virginia’s exclusion of women from the educational opportunities

provided by VMI—extraordinary opportunities for military training

and civilian leadership development—deny to women capable of all of

the individual activities required of the VMI cadets the equal

protection of the laws guaranteed by the Fourteenth Amendment?”

51a

Second, the majority erroneously determines that the

Act facially treats transgender athletes differently than

their peers. To demonstrate that a statute makes a

classification on its face, the plaintiff must show that it

“explicitly

distinguish[es]

between

individuals

on[protected] grounds.” Shaw v. Reno, 509 U.S. 630, 642

(1993); see, e.g., Reed v. Reed, 404 U.S. 71, 73 (1971)

(involving a facial classification where the statute stated

that “males must be preferred to females” (cleaned up)).

The Act does not facially discriminate based on

transgender status. It simply places athletes on sports

teams based on their biological sex. See W. Va. Code § 182-25d(c)(1) (stating that “[i]nterscholastic, intercollegiate,

intramural, or club athletic teams or sports . . . shall be

expressly designated as” male, female, or coed, “based on

biological sex”).3 Although the Act explicitly treats

biological boys and biological girls differently, it does not

expressly treat transgender individuals differently.4

(emphasis added) (cleaned up)); id. at 540–41 (noting that the expert

testimony established that some women “are capable of all of the

individual activities required of VMI cadets” (citation omitted)).

Therefore, Virginia simply does not support the majority’s similarly

situated analysis—or, more accurately, its lack thereof.

The majority makes much of the fact that the Act allows biological

girls to play on any team but does not allow the same for biological boys.

But this differential treatment of biological boys is justified by West

Virginia’s exceedingly persuasive government interest in promoting

fair competition and safety and ensuring opportunities for girls. Given

that biological girls have no physiological advantage over biological

boys, their inclusion in boys’ sports does not hinder biological boys’

competition. The converse is not true.

Given that the Act facially distinguishes between the sexes, it is

subject to heightened scrutiny for that reason. But no one disputes

that West Virginia has sufficiently important government interests in

separating its sports teams by sex. In fact, as the majority

52a

Indeed, the Act’s only reference to transgender status

is a statement that the West Virginia Legislature found

that “gender identity is separate and distinct from

biological sex.” Id. § 18-2-25d(a)(4). But that factually

accurate statement does not serve to treat transgender

individuals differently.5 Applying the Act, schools place all

athletes on the team corresponding with their biological

sex. Transgender athletes fair no differently than any

other athlete. On its face, therefore, the Act does not

discriminate against transgender athletes. See Adams, 57

F.4th at 809 (“[W]hile the . . . policy at issue classifies

students on the basis of biological sex, it does not facially

discriminate on the basis of transgender status.”).

It may be that the Act has the effect of treating

transgender students differently than non-transgender

students, but that’s irrelevant to a facial challenge under

the Equal Protection Clause. If B.P.J. intended to

challenge the effect of the Act, B.P.J. should have brought

a disparate impact claim, which allows a plaintiff to show

discrimination when a statute “otherwise neutral on its

face,” has a “disproportionate impact” on a particular class

of individuals if the statute was enacted with “an invidious

acknowledged, B.P.J. “disavowed any challenge to sex separation in

sports” and merely challenges the Act’s definition of “sex.” Ante at 18

(cleaned up).

The Act is different from the restroom policy in Grimm—which

the Court found involved a facial classification—because that policy

expressly stated that “students with gender identity issues [would]

be provided an alternative appropriate private facility,” explicitly

placing transgender students in a different restroom than their

counterparts. Grimm, 972 F.3d at 599 (citation omitted). Here, there

is no language expressly treating transgender students differently

than other students.

53a

discriminatory purpose.” Washington v. Davis, 426 U.S.

229, 241–42 (1976). But B.P.J. failed to bring such a claim.

See Opening Br. 23 (“H.B. 3293 facially discriminates

based on transgender status by explicitly excluding

consideration of ‘gender identity.’” (emphasis added)).

The majority errs by rectifying B.P.J.’s failure and finding

a transgender classification on the face of the Act where

one does not exist.6

Lastly, even assuming that the Act facially treats

similarly situated individuals differently than B.P.J., the

majority erroneously concludes that there is a material

dispute of fact regarding whether the Act survives

heightened scrutiny. In this Circuit, a statute that plainly

rests on distinctions based on transgender status is

suspect. See Grimm, 972 F.3d at 610. The Court reviews

such a statute with heightened scrutiny, finding it

unconstitutional “unless [it is] substantially related to a

sufficiently important governmental interest.” Id. at 608

(quoting Cleburne, 473 U.S. at 441). For a statute to

survive such scrutiny, “the state must provide an

‘exceedingly persuasive justification’” for the distinction.

Id. (citation omitted). West Virginia has done so here.

Everyone agrees that ensuring equal opportunities for

females is a sufficiently important government interest.

The dispute centers around whether excluding B.P.J.—

Ostensibly recognizing that the Act does not make a facial

classification, the majority posits that the “undisputed purpose” of the

Act’s reliance on biology is to exclude transgender girls from

participation on girls’ sports teams. Ante at 19. But purpose—like

effect—is relevant only when considering a disparate impact claim,

which, again, B.P.J. did not bring. The Act’s purpose has no relevance

in a facial classification analysis. See Shaw, 509 U.S. at 642 (“No

inquiry into legislative purpose is necessary when the racial

classification appears on the face of the statute.”).

54a

and other transgender girls who have not gone through

puberty—is substantially related to that interest. It is.7

Given how biological differences affect typical

outcomes in sports, ensuring equal opportunities for

biological girls in sports requires that they not have to

compete against biological boys. And B.P.J.’s experience

on the girls’ track-and-field team is a quintessential

example of why transgender girls participating in

biological girls’ sports interferes with West Virginia’s

well-founded interest. B.P.J.’s participation did exactly

Taking hormone suppressants is not a permanent condition.

B.P.J. can, at any point, choose to stop taking them. In fact, as health

care providers, states, and entire countries increasingly find that the

negative side effects of preventing the human body from going

through puberty are too destructive, B.P.J. may be compelled to quit

taking hormone suppressants. See, e.g., Josh Parry, NHS England to

Stop Prescribing Puberty Blockers, BBC (Mar. 13, 2024),

https://perma.cc/UA9Y-SMB5 (explaining that Great Britain banned

prescribing puberty blockers to minors after finding a lack of evidence

that they are safe or effective).

And since B.P.J.’s puberty status can be so easily modified, it

seems reasonable to allow West Virginia to apply a blanket ban on

transgender girls’ participation in biological girls’ sports. To hold

otherwise puts the burden on West Virginia to ensure that

transgender girls who currently take puberty suppressants remain

on them for the entire period they are involved in West Virginia sports

programs. But that is hardly feasible. Is West Virginia required to

take transgender girls at their word and hope that they don’t take

advantage of its trust in order to excel in girls’ sports? Or does West

Virginia have to require transgender girls to undergo periodic

medical testing to ensure nothing has changed? I think not.

Instead, recognizing that B.P.J.’s puberty status can change

solely at B.P.J.’s discretion permits West Virginia to justify the Act

through evidence that transgender girls generally have a

physiological advantage over biological girls.

55a

what West Virginia was trying to prevent: B.P.J.

repeatedly took opportunities away from biological girls.

As noted earlier, by consistently placing in the top

fifteen—and often in the top ten—competitors at events,

B.P.J. displaced at least one hundred biological girls at

track-and-field events and pushed multiple girls out of the

top ten. Similarly, by making the conference

championships in two events (something reserved for the

top three girls on a team), B.P.J. took away at least two

biological girls’ opportunities to participate in the

conference championships. And this was in a single

season.

Thanks to the new-found rubric of today’s majority

opinion, such displacement will become commonplace. By

continuing to allow B.P.J.—and transgender girls like

B.P.J.— to participate on girls’ teams, the number of

displaced biological girls will expand exponentially.

Further, as the spots on teams become more limited,

B.P.J. will prevent other biological girls from

participating on the teams altogether, thereby denying

them any athletic opportunity.

Thus, B.P.J.’s presence in biological girls’ sports has

taken—and will continue to take—away opportunities

from biological girls. The Act, therefore, directly relates

to West Virginia’s interest in ensuring equal opportunities

for girls in sports. The majority errs in concluding

otherwise.8

This is especially true given that this case involves a policy

decision about the welfare of minor students at school. “Schools

operate in loco parentis to students” and, together with the state, are

“responsible for maintaining [the] discipline, health, and safety” of

students. Adams, 57 F.4th at 802 (cleaned up). Given this

responsibility, we owe states a certain amount of deference when

determining policies that affect student welfare. Of course, states do

56a

At bottom, the majority expands the scope of the Equal

Protection Clause and erroneously concludes that

biological boys and biological girls who share only the

same gender identity are similarly situated for purposes

of sports. In so doing, the majority has uncovered an

aspect of the Equal Protection Clause hidden from all

others for over 150 years: a remarkable find.

Undeterred, the majority compounds its flawed

analysis and, in the process, overturns Title IX’s

advancement of women in sports.

Title IX provides that “[n]o person . . . shall, on the

basis of sex, be excluded from participation in, be denied

the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal

financial assistance.” 20 U.S.C. § 1681(a). To prevail on a

Title IX claim, a plaintiff must show that: (1) she was

“excluded from participation in an education program or

activity, denied the benefits of this education, or otherwise

subjected to discrimination because of [her] sex;” (2) “the

challenged action caused [her] harm”; and (3) “the

defendants are recipients of federal funding.” Peltier v.

not have “carte blanche,” but when states “have prudently assessed

and addressed an issue that affects student welfare, we should pay

attention.” Id. At the very least, we should take care not to

unnecessarily usurp the state’s ability to make policy decisions

regarding such issues. Thus, the fact that West Virginia deemed

biological-sex-separated sports necessary in schools after thoroughly

considering the issue should have resulted in some degree of

deference from the Court. See id. (“Given schools’ responsibilities, the

Supreme Court has afforded deference to their decisions even when

examining certain constitutional issues.”).

57a

Charter Day Sch., Inc., 37 F.4th 104, 129 & n.21 (4th Cir.

2022) (en banc).

B.P.J.’s Title IX claim fails on the first prong. Under

Title IX, “‘discrimination’ means treating an individual

worse than others who are similarly situated.” Id. at 129–

30 (cleaned up). The similarly situated analysis is the same

under Title IX as it is under the Equal Protection Clause.

See Sheppard v. Visitors of Va. State Univ., 993 F.3d 230,

238 (4th Cir. 2021). Thus, for the same reason B.P.J. did

not meet the similarly situated element of the equal

protection claim, B.P.J. cannot meet this element of the

Title IX claim: Biological sex is material to sports.

Yet, the majority again ignores this fact and, without

discussion, concludes that B.P.J.—a biological boy—is

similarly situated to biological girls for purposes of sports

teams. As discussed, because there is evidence that

biological boys, particularly B.P.J., have an advantage

over biological girls before puberty, the majority could not

have supported its similarly situated decision with a

finding that B.P.J. has no competitive advantage over

biological girls. So, once again, the majority must have

concluded that the fact that B.P.J. persistently identified

as a girl is sufficient to permit a finding that B.P.J. is

similarly situated to biological girls, ignoring biology and

competitive advantages altogether.

Although this conclusion was also error as to the equal

protection claim, it has even further-reaching and

destructive implications in the Title IX context. When a

court finds that a statute discriminates under an equal

protection analysis, it then moves on to the justification

inquiry. The statute will be struck down only if the state

fails to meet the requisite level of scrutiny—which is

unlikely in a case like this. In contrast, Title IX does not

require a justification inquiry. If a court finds

58a

discrimination under Title IX, the inquiry ends. It does not

matter that the state has an exceedingly persuasive

justification for its actions.

So, the majority’s determination that transgender girls

are similarly situated to biological girls regardless of any

potential advantage, and therefore that separating sports

teams by biological sex is discrimination against

transgender girls, has far reaching implications under

Title IX. In short, it means that states cannot exclude

transgender girls from biological girls’ sports teams even

when the transgender girls have gone through puberty

and it is even clearer that they have a significant

physiological advantage over biological girls. And allowing

transgender girls—regardless of any advantage—as

participants 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.

For context, “Title IX ‘precipitated a virtual revolution

for girls and women in sports.’” Adams, 57 F.4th at 818

(Lagoa, J., specially concurring) (quoting Deborah Blake,

The Struggle for Sex Equality in Sport and the Theory

Behind Title IX, 34 U. Mich. J.L. Reform 13, 15 (2000)). It

“paved the way for significant increases in athletic

participation for girls and women,” increasing female

student participation in sports from less than 300,000

students in 1971 to over 2.6 million students in 1999. Id. at

818 (citation omitted). Notably, this remarkable increase

was not the result of a “sudden, anomalous upsurge in

women’s interest in sports, but the enforcement of Title

IX’s mandate of gender equity in sports.” Id. at 819

(citation omitted)). Put simply, girls wanted to be a part of

sports but didn’t have access to it. Title IX granted them

access by evening the playing field.

59a

The majority’s decision to “commingle[] . . . the

biological sexes in the female athletics arena” hurdles in

the opposite direction and “significantly undermine[s] the

benefits afforded to female student athletes under Title

IX’s allowance for sex-separated sports teams.” Id. “[I]f

sport[s] were not sex segregated, most school-aged

[biological] females would be eliminated from competition

in the earliest rounds” or “may not even make the team.”

Id. at 820 (quoting Doriana Lambelet Coleman et al., Reaffirming the Value of the Sports Exception to Title IX’s

General Non-Discrimination Rule, 27 Duke J. Gender L.

& Pol’y 69, 90 (2020)). It is no understatement to say that

the inclusion of transgender girls on girls’ teams will drive

many biological girls out of sports and eviscerate the very

purpose of Title IX. See Williams v. Sch. Dist. of

Bethlehem, 998 F.2d 168, 175 (3d Cir. 1993) (stating that

“it would require blinders to ignore that the motivation

for” enacting Title IX and its sports regulations was to

promote opportunities for girls in sports).

And excluding biological girls from sports will be

detrimental on many levels beyond fields, courts, and

arenas. Inclusion in sports has countless far-reaching

benefits individually and to society at large. “Girls who

play sports stay in school longer, suffer fewer health

problems, enter the labor force at higher rates, and are

more likely to land better jobs. They are also more likely

to lead.” Adams, 57 F.4th at 820 (cleaned up). In fact, 94

percent of female C-Suite executives played a sport. Id.

This is probably because participating in sports instills the

values of “teamwork, sportsmanship, and leadership” and

encourages

“goal

setting,

time

management,

perseverance, discipline, and grit,” Id. at 820– 21 (citation

omitted), values that are necessary for successful careers.

60a

By compelling schools to allow transgender girls to

participate on biological girls’ teams regardless of

physiological advantage, the majority uses Title IX to

deny the very benefits it was enacted to protect. As we

have already seen, B.P.J.’s participation on the girls’

track-and-field team resulted in the exclusion of multiple

biological girls from competitive achievement and barred

them from the conference championships. And that was

the effect of just one person over the course of a single

season.

Moreover, the majority’s conclusion that West Virginia

violated Title IX by enacting a policy that unremarkably

separates its sports teams by biological sex also runs afoul

of the Constitution’s Spending Clause, U.S. Const., art. 1,

§ 8, cl.1. When Congress enacts legislation under the

Spending Clause—like it did for Title IX—Congress

“generates legislation ‘much in the nature of a contract: in

return for federal funds, the States agree to comply with

federally imposed conditions.” See Davis ex rel.

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

640 (1999) (citation omitted). As a result, Congress is

required to provide the States “with unambiguous notice

of the conditions they are assuming when they accept” any

funding. Id. at 637 (cleaned up); see also Adams, 57 F.4th

at 815 (stating that the Spending Clause mandates that

Congress give “a clear statement when imposing a[ny]

condition[s] on federal funding”). In that vein, when

“interpreting language in spending legislation, [Courts]

thus insist that Congress speak with a clear voice,

recognizing that there can, of course, be no knowing

acceptance of the terms of the putative contract if a State

is unaware of the conditions imposed by the legislation or

61a

is unable to ascertain what is expected of it.” Davis, 526

U.S. at 640 (cleaned up).

Applying that principle here, West Virginia cannot be

found to have violated Title IX by uncontroversially

requiring biological-sex-separated sports teams. Though

Title IX prohibits “sex” discrimination, 20 U.S.C. §

1681(a), a Department of Education implementing

regulation clarifies that a school may “sponsor separate

teams for members of each sex where selection for such

teams is based upon competitive skill or the activity

involved is a contact sport.” 34 C.F.R. § 106.41(b). So,

given that West Virginia was expressly allowed to create

sex-separated competitive sports teams, the question

becomes, does “sex” unambiguously mean gender

identity? The answer to that question is undeniably no.

When Title IX was enacted, “virtually every dictionary

definition of ‘sex’ referred to the physiological distinctions

between males and females.” Grimm, 972 F.3d at 632

(Niemeyer, J., dissenting) (collecting definitions); see also

Adams, 57 F.4th at 812 (same). For example, Webster’s

New World Dictionary defined sex as “either of the two

divisions, male or female, into which persons, animals, or

plants are divided, with reference to their reproductive

functions.” Sex, Webster’s New World Dictionary (1972).

It cannot be, then, that the definition of “sex”

unambiguously means gender identity. If anything, “sex”

unambiguously means biological sex.

Indeed, demonstrating that the commonly understood

definition of “sex” is biological sex, schools intending to

comply with Title IX have long separated sports teams by

biological sex. It is not hyperbole to say that, up to this

point, most of the country has understood Title IX to

prohibit biological-sex discrimination rather than genderidentity discrimination.

62a

Rightfully so. It defies logic to conclude that Congress

actually meant to prohibit gender identity discrimination

sub silentio when enacting Title IX in 1972. Or that West

Virginia should have been aware that that is what

Congress meant to do. If Congress so intended, it should

have explicitly said so. It did not.9

****

It is not the judiciary’s role to “become an outcomedriven enterprise prompted by feelings of sympathy.”

Grimm, 972 F.3d at 628 (Niemeyer, J., dissenting). “The

judiciary’s role is simply to construe the law.” Id. And,

here, the law unequivocally allows for biological-sexseparated sports teams.

III.

My dissent rests entirely on the foregoing discussion,

which accepts Grimm as binding precedent in this Circuit

to the extent that its holding has any implications here.

That said, because B.P.J. heavily relies on Grimm, I also

A divided panel in Grimm rejected a similar Spending Clause

argument in a footnote, reasoning that “Bostock forecloses [the

argument] that [the phrase] ‘on the basis of sex’ is ambiguous as to

discrimination against transgender persons.” Grimm, 972 F.3d at 619

n.18. But the Grimm majority’s reasoning does not apply here

because Bostock clearly does not answer the question before the

Court today—whether a statute that separates sports by biological

sex and does not explicitly treat transgender individuals differently

than their peers violates Title IX. The Bostock Court did not conclude

that discriminating based on biological sex is transgender

discrimination and, actually, assumed that the use of the word “sex”

in Title VII means biological sex.

Thus, Grimm’s discussion of the Spending Clause has no bearing

here.

63a

take this opportunity to emphasize that Grimm was

wrongly decided and should be recognized as such.

In Grimm, this Court considered a School Board’s

policy that stated that its schools would “provide male and

female restroom and locker room facilities in its schools,

and the use of said facilities [would] be limited to the

corresponding biological genders,” as listed on the

student’s birth certificate. 972 F.3d at 608. “[S]tudents

with gender identity issues” were provided “alternative

appropriate private” facilities. Id. at 609. Grimm, a

biological girl who identified as a boy, argued that the

restroom policy facially violated the Equal Protection

Clause and Title IX because it treated Grimm differently

than non-transgender students. Id. at 593. A divided panel

of this Court agreed. They erred.

In concluding that the restroom policy violated the

Equal Protection Clause, the Grimm majority made three

material errors: it incorrectly (1) concluded that Grimm

was similarly situated to biological boys; (2) surmised that

statutes that classify based on transgender status receive

heightened scrutiny; and (3) determined that the restroom

policy did not survive heightened scrutiny. Additionally, in

holding that the restroom policy violated Title IX, the

Grimm majority erroneously concluded that “sex”

actually means “gender identity,” ignoring a plethora of

dictionary definitions in the process.

I begin with the Grimm majority’s decision that the

restroom policy violates the Equal Protection Clause and

its erroneous conclusion that Grimm was similarly

situated to biological boys. The Grimm majority

erroneously rejected the School Board’s argument that

Grimm was similarly situated to biological girls because

64a

his “gender identity did not cause biological changes in his

body, and [he] remained biologically female.” Id. at 610. It

posited that “[a]dopting the [School] Board’s framing of

Grimm’s equal protection claim . . . would only vindicate

the [School] Board’s own misconceptions, which

themselves reflect ‘stereotypic notions’” of what “sex”

means. Id. In contrast, the Grimm majority concluded

that “[t]he overwhelming thrust of everything in the

record—from Grimm’s declaration, to his treatment

letter, to the amicus briefs—is that Grimm was similarly

situated to other boys, but was excluded from using the

boys restroom facilities based on his sex-assigned-atbirth.” Id.

But this explanation misunderstands the similarly

situated analysis, which, as noted earlier, requires the

plaintiff to identify persons materially identical to him or

her who have received different treatment. When it comes

to restroom use, there is nothing more materially relevant

than an individual’s anatomy. Indeed, “anatomical

differences are at the root of why communal restrooms are

generally separated on the basis of sex.” Grimm, 972 F.3d

at 636 (Niemeyer, J., dissenting); see also Adams, 57 F.4th

at 803 n.6 (“When it comes to the bathroom policy,

biological sex is the relevant respect with respect to which

persons must be similarly situated because biological sex

is the sole characteristic on which the bathroom policy and

the privacy interests guiding the bathroom policy are

based.” (cleaned up)). And it was undisputed that Grimm

had the same anatomical characteristics as the biological

girls at his school. Therefore, “by adopting a policy

pursuant to which Grimm was not permitted to use male

student restrooms, the School Board did not treat

differently persons who are in all relevant respects alike.”

Grimm, 972 F.3d at 636 (Niemeyer, J., dissenting)

(cleaned up). It treated Grimm the exact same way it

65a

treated all individuals with like anatomy. How Grimm

persistently identified simply has nothing to do with what

occurs in the restroom. This conclusion should have ended

the Court’s equal protection inquiry.

Nonetheless, having erroneously determined those

with whom to compare Grimm, the Grimm majority then

furthered its error by concluding that classifications based

on transgender status receive heightened scrutiny. It

gave two reasons to support its conclusion: it posited (1)

“various forms of discrimination against transgender

people constitute sex-based discrimination for purposes of

the Equal Protection Clause because such policies punish

transgender persons for gender non-conformity, thereby

relying on sex stereotypes,” id. at 608, and (2)

“transgender people constitute at least a quasi-suspect

class,” id. at 610. Both of these rationales are incorrect.10

As to the sex-stereotype justification, the Grimm

majority misunderstood and misapplied Supreme Court

precedent. The Supreme Court has explained that states

cannot justify a sex-based classification by relying on

“traditional, often inaccurate, assumptions about the

proper roles of men and women.” Miss. Univ. for Women

v. Hogan, 458 U.S. 718, 726 (1982). “The need for [that]

requirement is amply revealed by reference to the broad

range of statutes already invalidated by [the Supreme]

Court, statutes that relied upon the simplistic, outdated

assumption that gender could be used as a ‘proxy for

To be clear, my disagreement stems from the Grimm majority’s

conclusion

that

transgender-based

classifications

receive

intermediate scrutiny. I take no issue with the Grimm majority’s

additional conclusion that the restroom policy was a sex-based

classification and, therefore, was subject to intermediate scrutiny on

that ground. See 972 F.3d at 608–09.

66a

other, more germane bases of classification,’ to establish

[the] link between objective and classification” necessary

to survive intermediate scrutiny. Id. (internal citation

omitted). But the Court has never concluded that policies

that rely on stereotypes can demonstrate a classification

where one did not already exist.

Stated differently, the fact that a state relies on a sex

stereotype does not affect the Court’s analysis as to the

existence of a classification; it is, instead, relevant only to

the state’s justification when trying to meet the alreadydetermined level of scrutiny. See id. at 725 (“[I]f the

statutory objective is to exclude or ‘protect’ members of

one gender because they are presumed to suffer from an

inherent handicap or to be innately inferior, the objective

itself is illegitimate.”); United States v. Virginia, 518 U.S.

515, 550 (1996) (“[G]eneralizations about the way women

are, estimates of what is appropriate for most women, no

longer justify denying opportunity to women whose talent

and capacity place them outside the average description.”

(second emphasis added) (cleaned up)); Craig v. Boren,

429 U.S. 190, 198 (1976) (“[A]archaic and overbroad

generalizations . . . could not justify use of a gender line in

determining eligibility for certain governmental

entitlements.” (emphasis added) (cleaned up)); J.E.B. v.

Alabama ex rel T.B., 511 U.S. 127, 138 (1994) (“We shall

not accept as a defense to gender-based preemptory

challenges the very stereotypes the law condemns.”

(emphasis added) (cleaned up)). So, assuming the

restroom policy in Grimm did rely on sex stereotypes,

that fact would only become relevant when discussing

whether the School Board met the appropriate level of

scrutiny. It does not support the Court finding a

classification.

67a

Further, “[t]o say that the bathroom policy relies on

impermissible stereotypes because it is based on the

biological differences between males and females is

incorrect.” Adams, 57 F.4th at 810. The policy relies on

anatomy, and it is not a stereotype but an undisputed fact

that Grimm did not have the same anatomy as the

biological boys with whom he wished to share a restroom.

See Nguyen, 533 U.S. at 73 (“Mechanistic classification of

all our differences as stereotypes would operate to

obscure those misconceptions and prejudices that are

real.”). Thus, even assuming the Grimm majority was

correct to conclude that a sex stereotype can create a

classification where none exists, it still erred in applying

heightened scrutiny based on this premise because the

bathroom policy does not rely on such a stereotype.

Similarly, the Grimm majority incorrectly determined

that heightened scrutiny applied because transgender

individuals form a quasi-suspect class. Importantly, the

Supreme Court has not held that transgender persons

constitute a suspect or quasi-suspect class. And, to

establish a new suspect or quasi-suspect class, Grimm was

required to show that transgender individuals: (1) have

historically been subjected to discrimination; (2) “exhibit

obvious, immutable, or distinguishing characteristics that

define them as a discrete group”; and (3) are a minority

lacking political power. Bowen v. Gilliard, 483 U.S. 587,

602 (1987) (citation omitted). Grimm did not make the

required showing.

Most evidently, transgender individuals do not share

an obvious, immutable, or distinguishing characteristic. In

fact, as the World Professional Association for

Transgender Health Guidelines—relied on by the Grimm

majority—explain, the word “transgender” is used “to

describe a diverse group of individuals who cross or

68a

transcend culturally-defined categories of gender. The

gender identity of transgender people differs to varying

degrees from the sex they were assigned a birth.” World

Professional Association for Transgender Health,

Standards of Care for the Health of Transexual,

Transgender, and Gender Nonconforming People, (7th

ed.

2012)

https://wpath.org/media/cms/Documents/SOC%20v7/SO

C%20V7_English.pdf (emphasis added). As the Grimm

majority acknowledged, not “everyone identifies as a

binary gender of male or female . . . [and] there are other

gender-expansive youth who many identify as nonbinary,

youth born intersex who do not identify with their sexassigned-at-birth, and others whose identities belie

gender norms.” Grimm, 972 F.3d at 597.

Further, transgender individuals differ in the extent of

their transition to their preferred sex. Some individuals,

like B.P.J., take hormone suppressants, some undergo

surgery to change their physical appearance, and still

others simply socially transition, keeping their original

physical characteristics. This expansive and diverse group

can hardly be thought of as sharing a defining

characteristic.11

Additionally, a substantial number of transgender

individuals detransition, meaning that after transitioning

to the sex that they were not assigned at birth, these

individuals transition back to their sex assigned at birth.

This is especially true when comparing transgender individuals

as a class to the suspect classes that the Supreme Court has

recognized. Those groups share obvious characteristics such as a

particular race or sex. Unlike any characteristic present in

transgender individuals, both of those characteristics are “definitively

ascertainable at the moment of birth.” Ondo v. City of Cleveland, 795

F.3d 597, 609 (6th Cir. 2015).

69a

See L.W. ex rel Williams v. Skrmetti, 83 F.4th 460, 487

(6th Cir. 2023) (noting that being transgender is not

immutable “as the stories of ‘detransitioners’ indicate”

(citation omitted)); Pamela Paul, As Kids, They Thought

They were Trans. They no Longer Do., The New York

Times

(Feb.

2024),

https://www.nytimes.com/2024/02/02/opinion/transgender

-children-gender-dysphoria.html.

person’s

transgender status can so easily change of their own

volition, it is not immutable.

Therefore, given the high bar required to demonstrate

a suspect class, see L.W., 83 F.4th at 486, the Court should

have concluded that Grimm failed to show that

transgender individuals constitute such a class and

therefore that transgender-based classifications do not

receive heightened scrutiny.

Even accepting the applicability of heightened

scrutiny, however, the Grimm majority further erred by

concluding that the School Board’s justification for the

restroom policy—protecting student’s privacy—did not

meet that scrutiny. In its view, “bodily privacy of

cisgender boys using the boys restroom did not increase

when Grimm was banned from those restrooms.” Id. at

614. Although the Court acknowledged that “students

have a privacy interest in their body when they go to the

bathroom,” it opined that the School Board “ignore[d] the

reality of how a transgender child uses the bathroom: by

entering a stall and closing the door.” Id. at 613–14

(cleaned up).

But isn’t that how all biological women use the

restroom? Does that mean that biological women should

therefore be allowed open access to the men’s restroom?

It seems evident that, under the Grimm majority’s

reasoning, privacy is an insufficient justification to

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support sex-separated restrooms in general. If all that

matters is that individuals can go into a stall or utilize a

urinal with a privacy strip, why bother with sex-separated

restrooms at all? See id. at 614 (noting that Grimm’s use

of the restrooms actually “increased” privacy “because the

Board installed privacy strips and screens between the

urinals”). Even briefly considering this question

underscores the Grimm majority’s flawed reasoning. It is

plain that “the differences between the [sexes] demand a

facility for each [sex] that is different” Faulkner v. Jones,

10 F.3d 226, 232 (4th Cir. 1993). Thus, separating

restrooms by anatomy in order to ensure the privacy of

the students using the restroom clearly “serves [an]

important government objective[]” that “substantially

relate[s] to the achievement of [that] objective[],”

satisfying intermediate scrutiny. See Virginia, 518 U.S. at

533; see also id. at 550 n.19 (acknowledging that ordering

an all-male Virginia college to admit female students

“would undoubtedly require alterations necessary to

afford members of each sex privacy from the other sex in

living arrangements”).

Nonetheless, in order to further its goals of

“affirm[ing] the burgeoning values of our bright youth”

and abandoning the “prejudices of our past,” the Grimm

majority ignored how the restroom policy plainly related

to privacy interests and inappropriately created a new

suspect class in the process. Grimm, 972 F.3d at 620.

The Grimm majority also incorrectly concluded that

the restroom policy violated Title IX. As noted earlier,

Title IX provides that “[n]o person . . . shall, on the basis

of sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial

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assistance.” 20 U.S.C. § 1681(a). A longstanding

Department of Education implementing regulation

clarifies that, despite that prohibition, Title IX allows for

“separate toilet, locker room, and shower facilities on the

basis of sex” so long as they are “comparable” to one

another. 34 C.F.R. § 106.33.

Given that regulation, the Grimm Court’s conclusion

should have been straightforward: because Title IX allows

for restrooms separated by sex, the restroom policy—

which did exactly that—did not violate Title IX. Unhappy

with that conclusion, the Grimm majority maneuvered a

different outcome. It posited that Grimm did not challenge

sex-separated restrooms but the restroom policy’s

definition of sex. Grimm, 972 F.3d at 618. And because

“the [Department of Education] regulation cannot

override the statutory prohibition against discrimination

on the basis of sex,” the Grimm majority concluded that

the regulation only suggests that “the act of creating sexseparated restrooms in and of itself is not

discriminatory—not that, in applying restroom policies to

students like Grimm, the Board may rely on its own

discriminatory notions of what ‘sex’ means.” Id. In other

words, it construed Title IX to require “sex” to be defined

as “gender identity” and, therefore, to comport with Title

IX restrooms can only be separated on the basis of gender

identity. Wrong again.

For starters, “[r]eputable dictionary definitions of ‘sex’

from the time of Title IX’s enactment show that when

Congress prohibited discrimination on the basis of ‘sex’ in

education, it meant biological sex, i.e., discrimination

between males and females.” Adams¸ 57 F.4th at 812

(collecting definitions); see Grimm, 972 F.3d at 632

(Niemeyer, J., dissenting) (“And [when Title IX was

enacted], virtually every dictionary definition of ‘sex’

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referred to the physiological distinctions between males

and females — particularly with respect to their

reproductive functions.”); see also Johnson v. Zimmer,

686 F.3d 224, 232 (4th Cir. 2012) (reiterating that when

interpreting statutes, the Court gives undefined statutory

provisions “their ordinary, contemporary, common

meaning” and that the Court looks to dictionaries to help

determine that meaning (cleaned up)). For example,

Webster’s New World Dictionary defined “sex” as “either

of the two divisions, male or female, into which persons,

animals or plants are divided, with reference to their

reproductive functions.” Sex, Webster’s New World

Dictionary (1972) (emphasis added).12 Given this common

understanding of “sex,” it is unfathomable that Congress

silently intended to address gender identity

discrimination when enacting Title IX in 1972.

This is especially true given that, “[t]here simply is no

limiting principle to cabin [the Grimm majority’s]

definition of ‘sex’ to . . . bathrooms under Title IX, as

opposed to . . . the statutory and regulatory carve-outs for

living facilities, showers, and locker rooms.” Adams, 57

F.4th at 818 (Lagoa, J., specially concurring). And,

regardless of the majority’s view on restrooms, it defies

logic to conclude that Congress meant to allow biological

boys who identify as girls to shower with biological girls.

See 20 U.S.C. § 1686 (“Notwithstanding anything to the

contrary contained in this chapter, nothing contained

herein shall be construed to prohibit any education

Notably, Bostock supports this reading of Title IX. Although

Bostock expressly declined to opine on whether biological-sexseparated bathrooms violated any federal or state laws, it “proceed[ed]

on the assumption that ‘sex’ [as used in Title VII] . . . referr[ed] only to

biological distinctions between male and female.” Bostock, 590 U.S. at

655.

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institution . . . from maintaining separate living facilities

for the different sexes.” (emphasis added)). Congress

clearly intended to affirm certain aspects of sex separation

in education—like in restrooms, showers, locker rooms,

and sports—within its overall prohibition on sex

discrimination.13

Moreover, under the Grimm majority’s—and now this

majority’s—approach, Title IX “provide[s] more

protection against discrimination on the basis of

transgender status . . . than it would against

discrimination on the basis of sex.” Adams, 57 F.4th at

814. Indeed, under their reading, ensuring that

transgender individuals get access to the restrooms and

sports teams of their choosing is more important than

biological females’ rights to privacy and to play

competitive sports. No Congress has ever intended such a

result.

IV.

Ignoring what would seem to be clear law, the majority

ensures that policy preferences prioritizing transgender

persons take precedence. But where will this Court, or any

court, draw the line? Bostock allegedly drew the line at

employment decisions under Title VII. Grimm was

specific to bathrooms. Yet, here we are again, miles away

from the straightforward text of the laws we are called to

apply, judicially rewriting the Equal Protection Clause

Had the Grimm majority not erroneously concluded that “sex”

means gender identity under Title IX, a Department of Education

implementing regulation would foreclose the majority’s Title IX

decision today as well. See 34 C.F.R. § 106.41(b) (stating that a school

may “sponsor separate teams for members of each sex where selection

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

a contact sport”).

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and nullifying Title IX’s promise of equal athletic

opportunity for women.

And if the commonly understood and accepted limits on

restroom usage and sports teams are negated by judicial

fiat, I fail to see where the Court will ever impose a limit.

No unelected judge is empowered to decide that the Equal

Protection Clause and Title IX require schools to allow

transgender individuals to share locker rooms and

showers with the sex they identify with, anatomy

notwithstanding. Yet that seems to be the next stop on this

runaway train. Neither the drafters of the Equal

Protection Clause nor Congress when enacting Title IX

intended such a result.

Accordingly, I dissent from all but Parts II and III of

the majority opinion. One can only hope that the Supreme

Court will take the opportunity with all deliberate speed

to resolve these questions of national importance.

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___________________

APPENDIX B

___________________

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

[Filed January 5, 2023]

___________________

No. 2:21-cv-00316

___________________

B.P.J., et al.,

Plaintiffs,

WEST VIRGINIA STATE BOARD OF EDUCATION,

et al.,

Defendants.

___________________

MEMORANDUM OPINION AND ORDER

Before JOSEPH R. GOODWIN, Chief District Judge.

West Virginia passed a law that defines “girl” and

“woman,” for the purpose of secondary school sports, as

biologically female. Under the law, all biological males,

including those who identify as transgender girls, are

ineligible for participation on girls’ sports teams. B.P.J., a

transgender girl who wants to play girls’ sports,

challenges the law. The question before the court is

whether the legislature’s chosen definition of “girl” and

“woman” in this context is constitutionally permissible. I

find that it is.

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I. Relevant Facts

A. B.P.J.

B.P.J. is an eleven-year-old transgender girl. This

means that although B.P.J.’s biological sex is male, she

now identifies and lives as a girl. According to her First

Amended Complaint, B.P.J. began expressing her female

gender identity when she was three years old. [ECF No.

285-2]. By the end of third grade, B.P.J. expressed herself

fully—both at home and otherwise—as a girl. In 2019,

B.P.J. was diagnosed with gender dysphoria and, at the

first signs of puberty, she began taking puberty blocking

medications to treat that condition. [ECF No. 289-21]. As

a result, B.P.J. has not undergone endogenous male

puberty.

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

expressed interest in trying out for the girls’ crosscountry and track teams. When her mother, Plaintiff

Heather Jackson, asked the school to allow B.P.J. to

participate on the girls’ teams, the school initially

informed her that whether B.P.J. would be permitted to

play on the girls’ teams depended on the outcome of House

Bill (“H.B.”) 3293, which was then pending in the West

Virginia legislature. When the law passed, the school

informed Ms. Jackson that B.P.J. would not be permitted

to try out for the girls’ teams.

B. The “Save Women’s Sports Bill”

H.B. 3293, entitled the “Save Women’s Sports Bill,”

was introduced in the West Virginia House of Delegates

on March 18, 2021. The bill passed and was codified as

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

participation for sports events to be based on biological

sex of the athlete at birth.” The law, which was clearly

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carefully crafted with litigation such as this in mind,

begins with the following legislative findings:

(1) There are inherent differences between biological

males and females, and that these differences are cause

for celebration, as determined by the Supreme Court

of the United States in United States v. Virginia

(1996);

(2) These inherent differences are not a valid

justification for sex-based classifications that make

overbroad generalizations or perpetuate the legal,

social, and economic inferiority of either sex. Rather,

these inherent differences are a valid justification for

sex-based classifications when they realistically reflect

the fact that the sexes are not similarly situated in

certain circumstances, as recognized by the Supreme

Court of the United States in Michael M. v. Sonoma

County, Superior Court (1981) and the Supreme Court

of Appeals of West Virginia in Israel v. Secondary

Schools Act. Com’n (1989);

(3) In the context of sports involving competitive skill

or contact, biological males and biological females are

not in fact similarly situated. Biological males would

displace females to a substantial extent if permitted to

compete on teams designated for biological females, as

recognized in Clark v. Ariz. Interscholastic Ass’n (9th

Cir. 1982);

(4) Although necessarily related, as concluded by the

United States Supreme Court in Bostock v. Clayton

County (2020), gender identity is separate and distinct

from biological sex to the extent that an individual’s

biological sex is not determinative or indicative of the

individual’s gender identity. Classifications based on

gender identity serve no legitimate relationship to the

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State of West Virginia’s interest in promoting equal

athletic opportunities for the female sex; and

(5) Classifications of teams according to biological sex

is necessary to promote equal athletic opportunities for

the female sex.

W. Va. Code § 18-2-25d(a)(1)–(5).

After making these findings, the law sets forth

definitions of “biological sex,” “female,” and male” as

follows:

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

as a male or female based solely on the individual’s

reproductive biology and genetics at birth.

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

determined at birth is female. As used in this section,

“women” or “girls” refers to biological females.

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

determined at birth is male. As used in this section,

“men” or “boys” refers to biological males.

Id. § 18-2-25d(b)(1)–(3).

Finally, the law requires that each athletic team that is

“sponsored by any public secondary school or a state

institution of higher education” “be expressly designated

as” either male, female, or coed, “based on biological sex.”

Id. § 18-2-25d(c). Teams that are designated “female”

“shall not be open to students of the male sex where

selection for such teams is based upon competitive skill or

the activity involved is a contact sport.” Id. § 18-225d(c)(2).

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C. Procedural History

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

lawsuit against the West Virginia State Board of

Education and its then-Superintendent W. Clayton Burch,

the Harrison County Board of Education and its

Superintendent Dora Stutler, and the West Virginia

Secondary Schools Activities Commission (“WVSSAC”).

The State of West Virginia moved to intervene, and that

motion was granted. Plaintiff then amended her

complaint, [ECF No. 64], naming the State of West

Virginia and Attorney General Patrick Morrisey as

defendants. Mr. Morrisey has since been dismissed as a

party from this lawsuit.

In her amended complaint, B.P.J. alleges that

Defendants Burch, Stutler, and the WVSSAC deprived

her of the equal protection guaranteed to her by the

Fourteenth Amendment and that the State, the State

Board of Education, the Harrison County Board of

Education, and the WVSSAC have violated Title IX.

B.P.J. seeks a declaratory judgment that Section 18-2-25d

of the West Virginia Code violates Title IX and the Equal

Protection Clause; an injunction preventing Defendants

from enforcing the law against her; a waiver of the

requirement of a surety bond for preliminary injunctive

relief; nominal damages; and reasonable attorneys’ fees.

B.P.J. initially requested a preliminary injunction to

allow her to compete on the girls’ track and cross-country

teams during the pendency of this case. Finding that

B.P.J. had a likelihood of success on the merits of her asapplied challenge to the law, I granted the preliminary

injunction. All defendants moved to dismiss, and those

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motions were denied. Lainey Armistead, a cisgender1

female college athlete then moved to intervene as a

defendant and that motion was granted. All parties have

now moved for summary judgment.

II. Legal Standard

Summary judgment is appropriate where the

“depositions,

documents,

electronically

stored

information, affidavits or declarations, stipulations . . . ,

admissions, interrogatory answers, or other materials”

show that “there is no genuine dispute as to any material

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

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

III. Analysis

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

Equal Protection Clause and Title IX. I will address each

argument in turn. Before turning to the merits of those

arguments, however, I find it important to address some

preliminary matters.

A. The WVSSAC’s Motion

The WVSSAC does not argue the merits of Plaintiff’s

Equal Protection or Title IX claims. Rather, the WVSSAC

only argues that it is not a state actor and is therefore not

subject to scrutiny under either the Equal Protection

Clause or Title IX. I disagree. Defendant WVSSAC’s

motion [ECF No. 276] is DENIED.

A court may only apply equal protection scrutiny to

state action. U.S. Const. amend. XIV, § 1, cl. 4.; Lugar v.

Cisgender” means a person whose gender identity aligns with her

biological sex. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586,

594 (4th Cir. 2020), as amended (Aug. 28, 2020), cert. denied, 141 S.

Ct. 2878 (2021).

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Edmondson Oil Co., Inc., 457 U.S. 922, 923–24 (1982).

Likewise, only a party acting under the color of state law

is subject to suit pursuant to 42 U.S.C. § 1983. Despite

differing terms, the color-of-law requirement in a § 1983

claim and the state action requirement under the

Fourteenth Amendment are synonymous and are

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

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

“[T]he character of a legal entity is determined neither

by its expressly private characterization in statutory law,

nor by the failure of the law to acknowledge the entity's

inseparability from recognized government officials or

agencies.” Brentwood Acad. v. Tenn. Secondary Sch.

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

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

example, an ostensibly private actor can become a state

actor when it is “controlled by an ‘agency of the State,’” or

“entwined with governmental policies[,]” or the

government is “entwined in [its] management or control.”

Pennsylvania v. Bd. of Dir. of City Trs. of Phila., 353 U.S.

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

There is, however, no rigid test to determine when a

challenged action becomes a state action. Brentwood

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

will definitively confer state action because there may be

a better “countervailing reason against attributing

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

facts and weighing circumstances can the nonobvious

involvement of the State in private conduct be attributed

its true significance.” Lugar, 457 U.S. at 939 (citing

Burton v. Wilmington Parking Auth., 365 U.S. 715, 860

(1961); Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 116

(4th Cir. 2022) (“[T]he inquiry is highly fact-specific in

nature.”).

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After considering its composition, rulemaking process,

obligations under state law, and other rules for student

eligibility, I find the WVSSAC is a state actor. Like in

Brentwood Acad., the WVSSAC’s nominally private

character “is overborne by the pervasive entwinement of

public institutions and public officials in its composition

and workings, and there is no substantial reason to claim

unfairness in applying constitutional standards to it.” 531

U.S. at 298. I find that the WVSSAC is a state actor for

several reasons. Though county boards of education have

the statutory authority to supervise and control

interscholastic athletic events, they have delegated that

authority to the WVSSAC. [ECF No. 285-1]. Every public

secondary school in West Virginia is a member of the

WVSSAC, and the school principals sit on the WVSSAC’s

Board of Control to propose and vote on sports rules and

regulations. Id. Any rule the WVSSAC passes is then

subject to approval by the State Board of Education, and

the State Board of Education requires that any coach who

is not also a teacher be trained by the WVSSAC and

certified by the State Board of Education. Id. And the

WVSSAC Board of Directors—the entity that enforces

the rules—includes representatives of the State

Superintendent and the State Board of Education, among

other governmental entities. Id.; 127 C.S.R. § 127-1-8.2.

Here, it appears that the WVSSAC cannot exist without

the state, and the state cannot manage statewide

secondary school activities without the WVSSAC. The

WVSSAC is pervasively entwined with the state.

The WVSSAC’s motion for summary judgment [ECF

No. 276] is therefore DENIED.

B. Animus

In her Amended Complaint, B.P.J. alleges that H.B.

3293 was introduced in the legislature “as part of a

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concerted, nationwide effort to target transgender youth

for unequal treatment.” [ECF No. 64, ¶ 45]. B.P.J. alleges

that the law was “targeted at, and intended only to affect,

girls who are transgender.” Id. ¶ 46. In support of these

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

Delegate Jordan Bridges. According to the Amended

Complaint, Delegate Bridges made a Facebook post

announcing the introduction of the bill and then “‘liked’

comments on his post that advocated for physical violence

against girls who are transgender, compared girls who are

transgender to pigs, and called girls who are transgender

by a pejorative term.” Id. ¶ 47. In her summary judgment

motion, B.P.J. again points the court to the actions of

Delegate Bridges and points to several instances where

legislators made clear that the purpose of the bill was to

address transgender participation in sports.

Notwithstanding these statements, B.P.J. does not

argue that the law is unconstitutional under the Supreme

Court’s animus doctrine, and the record lacks sufficient

legislative history to make such a finding. The record

makes abundantly clear, however, that West Virginia had

no “problem” with transgender students playing school

sports and creating unfair competition or unsafe

conditions. In fact, at the time it passed the law, West

Virginia had no known instance of any transgender person

playing school sports. While the legislature did take note

of transgender students playing sports in other states, it

is obvious to me that the statute is at best a solution to a

potential, but not yet realized, “problem.”

Even so, the law is only unconstitutional under the

animus doctrine if the reason for its passage was the “bare

desire” to harm transgender people. U.S. Dep’t of Agric.

v. Moreno, 413 U.S. 528, 535 (1973). While the record

before me does reveal that at least one legislator held or

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implicitly supported private bias against, or moral

disapproval of, transgender individuals, it does not contain

evidence of that type of animus more broadly throughout

the state legislature. Therefore, I cannot find

unconstitutional animus on the record before me.

C. Other Matters

Next, before proceeding to the merits of the case, I find

it important to briefly discuss what this case is not.

First, despite the politically charged nature of

transgender acceptance in our culture today, this case is

not one where the court needs to accept or approve

B.P.J.’s existence as a transgender girl. B.P.J., like all

transgender people, deserves respect and the ability to

live free from judgment and hatred for simply being who

she is. But for the state legislature, creating a “solution”

in search of a problem, the courts would have no reason to

consider eligibility rules for youth athletics. Nevertheless,

I must do so now.

This is also not a case where B.P.J. challenges the

entire structure of school sports. B.P.J. does not

challenge, on a broad basis, sex-separation in sports.

B.P.J. wants to play on a girls’ team. And she admits that

there are benefits associated with school athletics,

“including when such athletics are provided in a sexseparated manner.” [ECF No. 286-1, at 1445]. Ultimately,

B.P.J.’s issue here is not with the state’s offering of girls’

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

“girl” and “boy.” The state has determined that for

purposes of school sports, the definition of “girl” should be

“biologically female,” based on physical differences

between the sexes. And the state argues that its definition

is appropriate here because it is substantially related to an

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important government interest. B.P.J., for her part, seeks

a legal declaration that a transgender girl is “female.”

I will not get into the business of defining what it means

to be a “girl” or “woman.” The courts have no business

creating such definitions, and I would be hard-pressed to

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

relevant legislative considerations. But I am forced to

consider whether the state’s chosen definition passes

constitutional muster in this one discrete context.

D. Equal Protection

Having addressed those matters, I now turn to the

merits of B.P.J.’s claim that H.B. 3293 violates the

Constitution’s Equal Protection Clause.

1. Legal Standard

The Equal Protection Clause of the Fourteenth

Amendment provides that no state may deny any person

within its jurisdiction “equal protection of the laws.” U.S.

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

similarly situated should be treated alike.” City of

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439

(1985). Realistically, though, every law impacts people

differently, and the Fourteenth Amendment does not

prohibit that outcome. Reed v. Reed, 404 U.S. 71, 75 (1971).

But the Equal Protection Clause does forbid a statute

from placing people into different classes and treating

them unequally for reasons “wholly unrelated to the

objective of that statute.” Id. at 75–76. Ultimately, if a law

seeks to treat different groups of people differently, it

must do so “upon some ground of difference having a fair

and substantial relation to the object of the legislation, so

that all persons similarly circumstanced shall be treated

alike.” Id. at 76 (quoting Royster Guano Co. v. Virginia,

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

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In general, courts presume that a law is constitutional.

Based on that presumption, courts may only overturn a

law if the challenger can show that the law’s classification

is not rationally related to any government interest.

Moreno, 413 U.S. at 533. This general review is known as

rational basis review. However, the court’s inquiry

becomes more searching if the law disadvantages a group

of people who have historically been discriminated against

and whose identity has nothing to do with their ability to

participate in society. Race-based laws, for example, are

“immediately suspect” because “they threaten to

stigmatize individuals by reason of their membership in a

racial group.” Shaw v. Reno, 509 U.S. 630, 643 (1993).

Laws based on race, or other suspect classifications such

as alienage and national origin, are subject to strict

scrutiny and will only be upheld “upon an extraordinary

justification.” Id. at 643–44 (quoting Pers. Adm’r of Mass.

v. Feeney, 442 U.S. 256, 272 (1979)). Under strict scrutiny,

the law must be “narrowly tailored to serve a compelling

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

In the middle of rational basis review and strict

scrutiny lies intermediate scrutiny. Intermediate scrutiny

applies to laws that discriminate on the basis of a quasisuspect classification, like sex, United States v. Virginia,

518 U.S. 515, 533 (1996), and transgender status, Grimm

v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 611 (4th Cir.

2020), as amended (Aug. 28, 2020), cert. denied, 141 S. Ct.

2878 (2021) (“Engaging with the suspect class test, it is

apparent that transgender persons constitute a quasisuspect class.”). Sex discrimination receives intermediate

scrutiny because while states have historically used sex as

a basis for invidious discrimination, we recognize that

there are some “real differences” between males and

females that could legitimately form the basis for different

treatment. Virginia, 518 U.S. at 533.

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The Supreme Court has long “viewed with suspicion

laws that rely on ‘overbroad generalizations about the

different talents, capacities, or preferences of males and

females.’” Sessions v. Morales-Santana, 137 S. Ct. 1678,

1692 (2017) (quoting Virginia, 518 U.S. at 533). Therefore,

laws that discriminate based on sex must be backed by an

“exceedingly persuasive justification.” Virginia, 518 U.S.

at 513. That is to say, the law’s proponents must show that

it “serves important governmental objectives and that the

discriminatory means employed are substantially related

to the achievement of those objectives.” Miss. Univ. for

Women v. Hogan, 458 U.S. 718, 724 (1982). Even if the

law’s objective is to protect the members of one sex, that

“objective itself is illegitimate” if it relies on “fixed notions

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

The party defending the statute must “present[]

sufficient probative evidence in support of its stated

rationale for enacting a [sex] preference, i.e., . . . the

evidence [must be] sufficient to show that the preference

rests on evidence-informed analysis rather than on

stereotypical generalizations.” H.B. Rowe Co. v. Tippett,

615 F.3d 233, 242 (4th Cir. 2010) (quoting Eng’g

Contractors Ass’n of S. Fla. v. Metro. Dade Cnty., 122

F.3d 895, 910 (11th Cir. 1997)); Concrete Works of Colo.,

Inc. v. City & Cnty. of Denver, 321 F.3d 950, 959 (10th Cir.

2003) (“[T]he gender-based measures . . . [must be] based

on ‘reasoned analysis rather than [on] the mechanical

application of traditional, often inaccurate, assumptions.’”

(quoting Miss. Univ. for Women, 458 U.S. at 726)).

2. Discussion

There is no debate that intermediate scrutiny applies

to the law at issue here— H.B. 3293 plainly separates

student athletes based on sex. And even B.P.J. agrees that

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the state has an important interest in providing equal

athletic opportunities for female students. [ECF No. 291,

at 24]. As discussed earlier, B.P.J. does not challenge sexseparation in sports on a broad basis; she does not argue

that teams should be separated based on some other

factor or not separated at all. Rather, B.P.J. recognizes

the benefits of sex-separated athletics and takes issue only

with the state’s definitions of “girl” and “woman” as based

on biological sex.

B.P.J. argues that “H.B. 3293 excludes students from

sports teams based on ‘biological sex’ and defines

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

genetics at birth.’” Id. at 19. According to B.P.J., H.B.

3293 uses this “‘ends-driven definition[] of “biological sex”’

to ‘guarantee a particular outcome’: Barring girls who are

transgender from qualifying as girls for purposes of school

sports and thereby categorically excluding them from

girls’ teams and therefore from school sports altogether.”

Id. (quoting Grimm, 972 F.3d at 626 (Wynn, J.,

concurring)). B.P.J. argues that this definition of

“biological sex,” and the related definitions of “girl” and

“woman,” are not substantially related to the government

interest in providing equal athletic opportunities for

females.

The State of West Virginia, the State Board

defendants, the Harrison County defendants, and

Intervenor Lainey Armistead all argue that the state’s

classification based on “biological sex” is substantially

related to its important interest in providing equal athletic

opportunities for females. The state points to a

longstanding recognition in the courts that “‘[p]hysical

differences between men and women . . . are enduring’ and

render ‘the two sexes . . . not fungible.’” [ECF No. 305, at

13–14 (quoting Virginia, 518 U.S. at 533)]. And the state

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argues that in order to preserve athletic opportunities for

females, it is necessary to exclude biological males from

female teams because males as a group have significant

athletic advantage over females and thus the two groups

are not similarly situated. [ECF No. 287, at 6–8].

The record does make clear that, in passing this law,

the legislature intended to prevent transgender girls from

playing on girls’ sports teams. In making that decision, the

legislature considered an instance in Connecticut where

two transgender girls ran on the girls’ track team and won

at least one event. Cisgender girls there sued, claiming the

state’s policy allowing the transgender girls to play on

girls’ teams violated Title IX. Id. at 5. But acting to

prevent transgender girls, along with all other biological

males, from playing on girls’ teams is not unconstitutional

if the classification is substantially related to an important

government interest. The state’s interest in providing

equal athletic opportunity to females is not at issue here,

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

general are not substantially related to that interest.

Rather, B.P.J. argues that she and other transgender

girls should be able to play on girls’ teams despite their

male sex, because their gender identity is “girl.”

While sex and gender are related, they are not the

same. See e.g., PFLAG, PFLAG National Glossary of

Terms (June 2022), http://pflag.org/glossary (defining

“biological sex” as the “anatomical, physiological, genetic,

or physical attributes that determine if a person is male,

female, or intersex . . . includ[ing] both primary and

secondary sex characteristics, including genitalia, gonads,

hormone levels, hormone receptors, chromosomes, and

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

conflated or interchanged with gender, which is more

societal than biological, and involves personal identity

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

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

chromosomes or female sex chromosomes. Gender, on the

other hand, refers to “a set of socially constructed roles,

behaviors, activities, and attributes that a given society

considers appropriate.” Id. Gender identity, then, is “[a]

person’s deeply held core sense of self in relation to

gender.” Id. For most people, gender identity is in line

with biological sex. See Grimm, 972 F.3d at 594. That is,

most females identify as girls or women, and most males

identify as boys or men. But gender is fluid. There are

females who may prefer to dress in a style that is more

typical of males (or vice versa), and there are males who

may not enjoy what are considered typical male activities.

These individuals may, however, still identify as the

gender that aligns with their sex. Others may not. When

one’s gender identity is incongruent with their sex, that

person is transgender. To be transgender, one must have

a deeply held “consistent[], persistent[], and insistent[]”

conviction that their gender is, “on a binary, . . . opposite

to their” biological sex. Id. I recognize that being

transgender is natural and is not a choice. But one’s sex is

also natural, and it dictates physical characteristics that

are relevant to athletics.

Whether a person has male or female sex chromosomes

determines many of the physical characteristics relevant

to athletic performance. Those with male chromosomes,

regardless of their gender identity, naturally undergo

male puberty, resulting in an increase in testosterone in

the body. B.P.J. herself recognizes that “[t]here is a

medical consensus that the largest known biological cause

of average differences in athletic performance between

[males and females] is circulating testosterone beginning

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

may be able to outperform some males, it is generally

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accepted that, on average, males outperform females

athletically because of inherent physical differences

between the sexes. This is not an overbroad

generalization, but rather a general principle that

realistically reflects the average physical differences

between the sexes. Given B.P.J.’s concession that

circulating testosterone in males creates a biological

difference in athletic performance, I do not see how I could

find that the state’s classification based on biological sex

is not substantially related to its interest in providing

equal athletic opportunities for females.

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

specifically excluding transgender girls from the

definition of “girl” in this context is unconstitutional

because transgender girls can take puberty blockers or

other hormone therapies to mitigate any athletic

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

biologically male, but she identifies as a girl. To express

her gender identity, she goes by a traditionally feminine

name, wears her hair long, uses female pronouns, and in

all other respects lives as a girl. Before the first signs of

puberty, B.P.J. made no other changes as a result of her

transgender identity. But, once she started showing signs

of male puberty, B.P.J. began taking puberty blocking

medications, pausing the male puberty process. In that

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

characteristics typical of males during and after puberty.

While this may be true for B.P.J., other transgender

girls may not take those medications. They may not even

come to realize or accept that they are transgender until

after they have completed male puberty. Even if a

transgender girl wanted to receive hormone therapy, she

may have difficulty accessing those treatment options

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

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as evidenced by the thousands of pages filed by the parties

in this case, there is much debate over whether and to

what extent hormone therapies after puberty can reduce

a transgender girl’s athletic advantage over cisgender

girls. Additionally, of course, there is no requirement that

a transgender person take any specific medications or

undergo hormone therapy before or after puberty. A

transgender person may choose to only transition socially,

rather than medically. In other words, the social, medical,

and physical transition of each transgender person is

unique.

The fact is, however, that a transgender girl is

biologically male and, barring medical intervention, would

undergo male puberty like other biological males. And

biological males generally outperform females

athletically. The state is permitted to legislate sports rules

on this basis because sex, and the physical characteristics

that flow from it, are substantially related to athletic

performance and fairness in sports.

Could the state be more inclusive and adopt a different

policy, as B.P.J. suggests, which would allow transgender

individuals to play on the team with which they, as an

individual, are most similarly situated at a given time? Of

course. But it is not for the court to impose such a

requirement here. Sex-based classifications fall under

intermediate scrutiny and therefore do not have a

“narrowly-tailored” requirement. As intervenor, Lainey

Armistead, points out, “[s]ome boys run slower than the

average girl . . . [and] [s]ome boys have circulating

testosterone levels similar to the average girl because of

medical conditions or medical interventions,” but B.P.J.

denies that the latter “would be similarly situated [to

cisgender girls] for purposes of Title IX and the Equal

Protection Clause,” and does not argue that they should

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be allowed to play on girls’ teams. [ECF No. 288, at 17

(citing ECF No. 286-1, at 1473)]. This is inconsistent with

her argument that the availability of hormone therapies

makes transgender girls similarly situated to cisgender

girls. In fact, after reviewing all of the evidence in the

record, including B.P.J.’s telling responses to requests for

admission, it appears that B.P.J. really argues that

transgender girls are similarly situated to cisgender girls

for purposes of athletics at the moment they verbalize

their transgender status, regardless of their hormone

levels.

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

“biological sex” is substantially related to the important

government interest of providing equal athletic

opportunities for females. B.P.J.’s motion for summary

judgment on this basis is DENIED.

E. Title IX

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

Title IX. B.P.J. brings this claim against the State of West

Virginia, the State Board of Education, the County Board

of Education, and the WVSSAC.

1. Legal Standard

Title IX provides that “no person . . . shall, on the basis

of sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). To succeed on a Title IX

claim, a plaintiff must prove that she was (1) excluded

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

the educational institution was receiving federal financial

assistance at the time; and (3) that “improper

discrimination caused [her] harm.”

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