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

Supreme Court briefJul 12, 2024

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No. 24IN THE

Supreme Court of the United States

WEST VIRGINIA SECONDARY

SCHOOL ACTIVITIES COMMISSION,

Petitioner,

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

HEATHER JACKSON; 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; THE STATE OF WEST

VIRGINIA; AND LAINEY ARMISTEAD,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF A PPEALS FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROBERTA F. GREEN

Counsel of Record

KIMBERLY M. BANDY

SHUMAN MCCUSKEY SLICER PLLC

1411 Virginia Street East, Suite 200

Charleston, WV 25301

(304) 345-1400

rgreen@shumanlaw.com

Counsel for Petitioner

331044

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

This case navigates the course of the state actor

doctrine from Brentwood Academy v. Tennessee SSAA 531

U.S. 288 (2001), and Smith v. NCAA, 266 F.3d 152 (3d Cir.

2001), to Peltier v. Charter Day School, 37 F.4th 104 (2022).

The entw inement test has been variously and

illogically applied. Where in Christian Heritage Acad.

v. Oklahoma SSAA, 483 F.3d 1025 (10th Cir. 2007), and

Crane v. Indiana HSAA, 975 F.2d 1315 (7th Cir. 1992), the

test applied to action, here, WVSSAC has not acted, is not

VODWHGWRDFWDQGKDVQRUROHLGHQWLÀHGIRULWLQWKLVSURFHVV

In Title IX determinations, the role of federal funding is

variably determinative. See Parker v. Indiana HSAA,

2009 U.S. Dist. LEXIS 113395 (S.D. In. 2009); Johnny’s

Icehouse, Inc. v. Amateur Hockey Ass’n, 134 F. Supp. 2d

965 (N.D. Ill. 2001). Here conversely, WVSSAC does not

receive federal funds, has no ’controlling authority’ and

yet is held to answer under Title IX.

The questions presented here include the following:

What are the indicia of ‘state actor’? And do

they include action, entwinement and controlling

authority?

Is private industry aggrieved by a baseless

conversion into state actor, complete with

heret ofore unk now n lega l duties and no

immunities?

Should courts be called upon to make state

actor determinations within some meaningful,

reproduceable, predictable framework or

process?

Did the courts below apply this Court’s seven

tests relative to West Virginia Secondary School

Activities Commission (WVSSAC)? If they failed

to do so, did they improperly convert this private

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its 108-year history?

iii

PARTIES TO THE PROCEEDING

Petitioner who was a defendant in the District Court

and an appellee and cross-appellant in the Court of

Appeals is the West Virginia Secondary School Activities

Commission.

Respondent who was a plaintiff in the District Court

and an appellant in the Court of Appeals is B.P.J., by her

next friend and mother, Heather Jackson.

Respondents who were defendants in the District

Court and appellees in the Court of Appeals are the West

Virginia State Board of Education; Harrison County

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capacity as State Superintendent; and Dora Stutler, in

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Respondents who were intervenors in the District

Court and appellees in the Court of Appeals are the State

of West Virginia and Lainey Armistead.

CORPORATE DISCLOSURE STATEMENT

Petitioner West Virginia Secondary School Activities

Commission has no parent corporation. There is no

publicly held company owning 10% or more of the

corporation’s stock.

RELATED PROCEEDINGS

B.P.J., by her next friend and mother, Heather Jackson

v. West Virginia State Board of Education, et al., No. 2:21cv-00316, U.S. District Court for the Southern District of

West Virginia. Judgment entered January 5, 2023.

West Virginia, et al. v. B.P.J., by her next friend and

mother, Heather Jackson, No. 22A800, Supreme Court of

the United States. Application to Vacate the Injunction

denied April 6, 2023.

B.P.J., by her next friend and mother, Heather

Jackson v. West Virginia State Board of Education, et

al., No. 23-1078 (L), U.S. Court of Appeals for the Fourth

Circuit. Judgment entered April 16, 2024.

B.P.J., by her next friend and mother, Heather Jackson

v. West Virginia Secondary School Activities Commission,

et al., No. 23-1130 (consolidated with 23-1078), U.S. Court

of Appeals for the Fourth Circuit. Judgment entered April

16, 2024.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . iii

CORPORATE DISCLOSURE STATEMENT . . . . . . iv

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . .v

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATUTORY PROVISIONS AND REGULATIONS . . .1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .3

REASONS FOR GRANTING THE WRIT. . . . . . . . . .8

The Courts Below Have Lost Sight of the

Channel Markers for State Actor, Mandating

Course Correction by this Court Now . . . . . . . . .8

vii

Table of Contents

Page

II. WVSSAC is aggrieved by the lower courts’

decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

III. The District Court and Fourth Circuit

are wrong . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

viii

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

APRIL 16, 2024. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a

A PPEN DI X B — M EMOR A N DU M

OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

S OU T H ER N DI S T R IC T OF W E S T

VIRGINIA, CHARLESTON DI VISION,

FILED JANUARY 5, 2023 . . . . . . . . . . . . . . . . . . .76a

APPENDIX C — JUDGMENT ORDER OF THE

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST

VIRGINIA, CHARLESTON DI VISION,

FILED JANUARY 5, 2023 . . . . . . . . . . . . . . . . . . 101a

A PPEN DI X D — M EMOR A N DU M

OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

S OU T H ER N DI S T R IC T OF W E S T

VIRGINIA, CHARLESTON DIVISION,

FILED DECEMBER 1, 2021 . . . . . . . . . . . . . . . . .103a

APPENDIX E — RELEVANT STATUTORY

PROVISIONS & REGULATIONS . . . . . . . . . . . .112a

TABLE OF CITED AUTHORITIES

Page

CASES:

Air Evac. EMS, Inc. v. Cheatham,

260 F. Supp. 3d 628 (S.D. W. Va. 2017) . . . . . . . . . . .30

Alston v. Virginia High School League, Inc.,

144 F. Supp. 2d 526 (W. D. Va. 1999) . . . . . . 24, 25, 26

Am. Express Co. v. Italian Colors Rest.,

570 U.S. 228 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

B.P.J. v. State Board,

98 F.4th 542 (4th Cir. 2024) . . . . . . . . . . . . . . . . . . . .13

Better Gov’t Ass’n v. Ill. High Sch. Assn.,

89 N.E.3d 376 (Ill. 2017) . . . . . . . . . . . . . . . . . . . . . . .19

Blum v. Yaretsky,

457 U.S. 991 (1982) . . . . . . . . . . . . . . . . . . . . . . . . .11, 12

Brentwood Academy v. Tennessee Secondary

School Athletic Association,

180 F.3d 758 (6th Cir. 1999),

rev’d, 531 U.S. 208 (2001) . . . . . . . . . . 8, 12, 13, 18, 24

Christian Heritage Acad. v. Oklahoma

Secondary School Activities Association

(OSSAA),

483 F.3d 1025 (10th Cir. 2007) . . . . . . . . . . . . . . . . . . 17

Cited Authorities

Page

Communities for Equity v. Michigan High

School Athletic Association,

80 F. Supp. 2d 729 (W. D. Mich. 2000) . . .10, 24, 26, 31

Crane v. Indiana High School Athletic Ass’n,

975 F.2d 1315 (7th Cir. 1992). . . . . . . . . . . . . . . . . . . . 17

Cureton v. NCAA,

198 F.3d 107 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . .28

Davison v. Randall,

912 F.3d 666 (4th Cir. 2019) . . . . . . . . . . . . . . . . . . . . .20

DeBauche v. Trani,

191 F.3d 499 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . .22

Fulton v. City of Phila.,

592 U.S. 522 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Horner v. Ky. High Sch. Athletic Ass’n,

43 F.3d 265 (6th Cir. 1994). . . . . . . . . . . . . . . . . . . . . .13

Israel v.

W. Va. Secondary Sch. Activities Comm’n,

388 S.E.2d 480 (W. Va. 1989) . . . . . . . . . . . . . . . . . . .11

Israel v. West Virginia Secondary

Schools Activities Commission,

182 W. Va. 454, 388 S.E.2d 480 (1989) . . . . . . . . . . . .16

Cited Authorities

Page

Jacobellis v. Ohio,

378 U.S. 184 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Johnny’s Icehouse, Inc. v. Amateur Hockey Ass’n,

134 F. Supp. 2d 965 (N.D. Ill. 2001) . . . . . . . . . . . . . .18

Johnson v. United States,

559 U.S. 133 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Jones v. West Virginia State Board of Educ. et al.,

218 W. Va. 52, 622 S.E.2d 289 (2005) . . . . . . . . . .16, 22

Labrador v. Poe,

144 S. Ct. 921 (2024). . . . . . . . . . . . . . . . . . . . . . . . . . .20

Loper Bright Enterprises v. Raimondo,

603 U.S. ___ (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Mayo v. West Virginia SSAC,

672 S.E.2d 231 (W. Va. 2008) . . . . . . . . . . . . . . . . .3, 28

Mentavlos v. Anderson,

249 F.3d 301 (4th Cir. 2001). . . . . . . . . . . . . . . . . . . . .10

Miller v. Brown,

462 F.3d 312 (4th Cir. 2006). . . . . . . . . . . . . . . . . . . . .30

xii

Cited Authorities

Page

Nabholz Constr. Corp. v.

Contractors For Pub. Prot. Ass’n.,

37 Ark. 411 (2007), 266 S.W.3d 689 (2017). . . . . . . . .19

Nat’l Park Hosp. Ass’n v. Dep’t of the Interior,

538 U.S. 803, 123 S. Ct. 2026,

155 L. Ed. 2d 1017 (2003). . . . . . . . . . . . . . . . . . . . . . .30

NCAA v. Tarkanian,

488 U.S. 179 (1988) . . . . . . . . . . . . . . . . . . . . . .15, 23, 25

Parker v. IHSAA,

2010 U.S. Dist. LEXIS 23409 (S.D. In. 2010) . . . . . .18

Parker v. Indiana High School Athletics

Association (IHSAA),

2009 U.S. Dist. LEXIS 113395

(S.D. In. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18

Peltier v. Charter Day School, Inc.,

37 F.4th 104 (4th Cir. 2022) . . . . . . . . . . . . . . .10, 12, 18

Philips v. Pitt Cty. Mem’l Hosp.,

572 F.3d 176 (4th Cir. 2009) . . . . . . . . . . . . . . . . . . . . .21

Rainwater v. Bd. of Regents of the Univ. of Okla.,

No. CIV-19-382-R, 2020 U.S. Dist. LEXIS 12867

(W.D. OK March 11, 2020) . . . . . . . . . . . . . . . . . . . . .19

Richardson v. McKnight,

521 U.S. 399 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . .19

xiii

Cited Authorities

Page

Sandoval v. Texas,

144 S. Ct. 1166 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . .34

Sessoms v. Grounds,

776 F.3d 615 (3d Cir. 2015) . . . . . . . . . . . . . . . . . . . . .13

Shipman v. Balt. Police Dept.,

ELH-13-0396, 2014 U.S. Dist. Lexis 59733

(D. Md. Apr. 29, 2014) . . . . . . . . . . . . . . . . . . . . . . . . .22

Smith v. NCAA,

266 F.3d 152 (3d Cir. 2001) . . . . . . . . . . . 10, 12, 14, 15,

18, 21, 23, 28, 31

State of West Virginia v. B.P.J.,

No. 24-__ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Texas v. United States,

523 U.S. 296, 118 S. Ct. 1257,

140 L. Ed. 2d 406 (1998) . . . . . . . . . . . . . . . . . . . . . . .30

Thomas v. Union Carbide Agric. Products Co.,

473 U.S. 568, 105 S. Ct. 3325,

87 L. Ed. 2d 409 (1985) . . . . . . . . . . . . . . . . . . . . . . . .30

United Bhd. of Carpenters &

Joiners, Local 610 v. Scott,

463 U.S. 825 (1983). . . . . . . . . . . . . . . . . . . . . . . . .21, 22

United States v. Classic,

313 U.S. 299, 61 S. Ct. 1031,

85 L. Ed. 1368 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . .21

xiv

Cited Authorities

Page

Wash. State Dep’t of Licensing v. Cougar Den, Inc.,

586 U.S. 347 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . 11, 15

West v. Am. Tel. & Tel.,

311 U.S. 223 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

West v. Atkins,

487 U.S. 42, 108 S. Ct. 2250,

101 L. Ed. 2d 40 (1988). . . . . . . . . . . . . . . . . . . . . . . . .21

Williams v. Bd. of Regents,

477 F.3d 1282 (11th Cir. 2007). . . . . . . . . . . . . . . . .9, 13

Yellow Springs Exempted

Village School District Board of Education v.

Ohio High School Athletic Association,

647 F.2d 651 (6th Cir. 1981) . . . . . . . . . . . 24, 26, 27, 28

STATUTES AND OTHER AUTHORITIES:

U.S. Const. Amend. XIV . . . . . . . . . . . . . . . . . . 22, 24, 27

20 U.S.C. § 1681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

28 U.S.C. § 1254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Cited Authorities

Page

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Charles. L. Black, Jr., Foreword: “State Action,” Equal

Protection, and California’s Proposition 14,

81 Harv. L. Rev. 69 (1967) . . . . . . . . . . . . . . . . . . . . . .13

Julie K. Brown, Less Is More: Decluttering the State

Action Doctrine, 73 Mo. L. Rev. 561(2008). . . . . .9, 33

Title IX of the Education Amendments Act of

1972 (2018). . . . . . . . . . . . . 2, 3, 6, 7, 8, 13, 17, 20, 21, 27

W. Va. Code § 16B-17-1 . . . . . . . . . . . . . . . . . . . . . . . . . . .19

W. Va. Code § 18-2-5 . . . . . . . . . . . . . . . . . . . . . . . . . 22, 27

W. Va. Code § 18-2-25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

W. Va. Code § 18-2-25d . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

West Virginia C.S.R. § 126-26-4 . . . . . . . . . . . . . . . . . . . .1

West Virginia C.S.R. § 127-2-3.8. . . . . . . . . . . . . . . . . . .32

West Virginia C.S.R. § 127-3-22 . . . . . . . . . . . . . . . . . . . .1

West Virginia C.S.R. § 127-3-29 . . . . . . . . . . . . . . . . . . . .1

www.wvssac.org/school-directory. . . . . . . . . . . . . . . . . .26

OPINIONS BELOW

The Fourth Circuit’s panel opinion (Pet. App. 1a) is

reported at 98 F.4th 542 and is available at 2024 U.S. App.

LEXIS 9153. The District Court’s opinion (Pet. App. 76a)

is reported at 649 F.Supp.3d 220 and is available at 2023

U.S. Dist. LEXIS 1820.

JURISDICTION

The Fourth Circuit issued its panel opinion on April

16, 2024. Pet. App. 1a. The lower courts had jurisdiction

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

has jurisdiction under 28 U.S.C. §1254.

STATUTORY PROVISIONS AND REGULATIONS

The relevant West Virginia statutory provisions are

West Virginia Code §18-2-25d (Pet. App. 112a) and West

Virginia Code § 18-2-25 (Pet. App. 116a).

The relevant West Virginia regulations are West

Virginia C.S.R. §126-26-4, in part (Pet. App. 120a), §1273-22 (Pet. App. 121a), and §127-3-29 (Pet. App. 122a).

INTRODUCTION

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Secondary School Activities Commission (“WVSSAC”),

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W.Va. Code §18-2-25d. (Pet. App. 112a), passed by the

West Virginia Legislature in 2021. WVSSAC does not

belong in the litigation. WVSSAC had no role in passage

of the Act, and it did not take any action as to B.P.J. While

the Act contemplates action by the West Virginia State

Board of Education to implement its provisions, there is

no action contemplated by WVSSAC. (Pet. App. 115a).

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will likely cause. WVSSAC has maintained that it is not

a state actor because it has not acted, thus, it cannot have

been engaged in “state” action. Further, it is not subject

to Title IX of the Education Amendments Act of 1972

(2018) because it does not receive federal funds.1 Without

meaningful analysis and only one generalized citation to

the factual record, the District Court incorrectly held that

WVSSAC is a state actor for purposes of this case and that

it is subject to scrutiny under the Equal Protection Clause

and Title IX. The Fourth Circuit erred in reaching the

same conclusion on appeal. As a result, though WVSSAC

is a private corporation that has done nothing to affect

B.P.J. in any way, it has been swept along in the tide

of this litigation regarding the legality of the Act. This

Court should intervene to prevent such casual conversion

of private industry into state actor.

WVSSAC is a nonprofit private corporation that

organizes and sponsors interscholastic sports programs

in West Virginia. WVSSAC’s regulations are genderneutral, and nothing in W VSSAC’s policies would

categorically exclude a transgender girl from playing on

a girls’ team. 2 The Act provides that teams “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.” (Pet. App. 114a). A parent of a transgender girl

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1. Fourth Circuit Joint Appendix Vol. 1, JA0491 (ECF 53-1).

2. Fourth Circuit Joint Appendix Vol. 1, JA0061 (ECF 53-1).

challenge the Act on the basis of the Equal Protection

Clause of the Fourteenth Amendment and Title IX. The

State of West Virginia intervened in the suit to defend the

legality of the legislation.

STATEMENT OF THE CASE

WVSSAC is a private corporation, founded in 1916,

and the Supreme Court of Appeals of West Virginia has

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association since 1916 (and was not created nor empowered

by the Legislature); it is not funded by public moneys;

and not all public or private schools in West Virginia have

elected to belong. 3

In the District Court, WVSSAC did not argue the

merits of the Equal Protection or Title IX claims. Instead,

WVSSAC asserted that it is not a state actor subject

to scrutiny under either the Equal Protection Clause

or Title IX. The District Court rejected this argument

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The District Court relied on B.P.J.’s assertion that under

the Act, “each defendant will take some action that will

cause her asserted harm.” (Pet. App. 109a). With respect

to the Title IX claim, the District Court determined that

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exclude her from participation in an educational event on

the basis of sex” and that each “receives federal funding,

either directly or indirectly.” (Pet. App. 110a-111a). With

respect to Equal Protection, the court stated that B.P.J.

had alleged that each defendant, “acting under the color

3. Syl. Pt. 2,3 Mayo v. West Virginia SSAC, 672 S.E.2d 231

(W. Va. 2008).

of state law, is discriminating against her on the basis of

sex.” (Pet. App. 111a).

These assertions by B.P.J. were demonstrated to

be inaccurate. WVSSAC has no role under the Act. The

Act provides that the State Board of Education, the

Higher Education Policy Commission, and the Council for

Community and Technical College Education shall propose

and promulgate rules to implement the Act. (Pet. App.

115a). The Act does not contemplate action by WVSSAC.

In West Virginia, State Board of Education rules are

neither promulgated nor implemented by WVSSAC.

Instead, they are embedded in WVSSAC’s rule books as

promulgated by the State Board. However, only the State

Board can revise, amend, or provide waivers to its rules.

An example is the existing “2.0 rule” promulgated by the

State Board, requiring students to maintain a 2.0 average

in order to participate in extracurricular activities. (Pet.

App. 120a). Enforcement of the State Board’s 2.0 rule lies

with the schools and the counties, not WVSSAC.4 Further,

during the pandemic, the State Board waived or changed

compliance with its 2.0 rule. 57KH6WDWH%RDUGFRQÀUPHG

if a rule is promulgated by the State Board of Education

as contemplated in the Act in the future, implementation

and enforcement of the State Board’s rule would be by

the schools.6

That is no different from the status quo when it comes

to designation of students on teams. The Harrison County

4. Fourth Circuit Joint Appendix Vol. 3, JA1531 (ECF 53-3).

5. Fourth Circuit Joint Appendix Vol. 3, JA1531 (ECF 53-3).

6. Fourth Circuit Joint Appendix Vol. 3, JA1533-1534 (ECF

53-3).

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that students are currently designated for either a boys’

team or a girls’ team at the school level, not by WVSSAC.

(LWKHUWKHVWXGHQWRUWKHSDUHQWÀOOVRXWDQLQIRUPDWLRQ

sheet that goes to the athletic director,7 who then puts the

information on a particular roster in a portal that can be

seen by WVSSAC. 8 This has not changed with passage

of the Act, because any rules slated to be promulgated

by the State Board under the Act will be implemented

by the schools.9 WVSSAC does not now, nor would it in

the future, implement State Board policies such as the

2.0 rule or any rules ultimately promulgated by the State

Board under the Act.

The factual record also revealed that WVSSAC receives

no governmental funding. WVSSAC’s uncontroverted

evidence with respect to its sources of funding are as

follows:

West Virginia’s Secondary School Activities

Commission (W VSSAC) receives no dues

whatsoever from member schools and has not

for more than a decade. WVSSAC sustains

itself with corporate sponsorships, advertising

revenue and gate proceeds from championship

meets and tournaments.10

7. Fourth Circuit Joint Appendix Vol. 3, JA1331 (ECF 53-3).

8. Fourth Circuit Joint Appendix Vol. 3, JA1331-1334 (ECF

53-3).

9. Fourth Circuit Joint Appendix Vol. 3, JA1533-1534 (ECF

53-3).

10. Fourth Circuit Joint Appendix Vol. 8, JA4193 (ECF 53-8).

Based on this factual record, WVSSAC moved for

summary judgment, arguing that it has not acted, and it

not slated to act in any way relative to B.P.J. and the Act,

and thus is not a “state actor” in this context. Without

meaningful analysis and only one generalized citation to

the factual record, the District Court denied WVSSAC’s

motion and found WVSSAC was a state actor. (Pet. App.

82a). While acknowledging that “[a] court may only apply

equal protection scrutiny to state action” (Pet. App. 82a),

the District Court erred in determining that WVSSAC

is a “state actor” while simultaneously failing to identify

any “action” by WVSSAC related to B.P.J. upon which

such a determination could be based. The District Court

summarily concluded that WVSSAC is likewise subject

to Title IX, without any analysis whatsoever regarding

:966$&·VDUJXPHQWWKDWLWUHFHLYHVQRIHGHUDOÀQDQFLDO

assistance. (Pet. App. 82a-85a).

While WVSSAC’s motion for summary judgment was

denied, the District Court found in favor of the defendants

and held that the Act is constitutional and complies with

Title IX, entering judgment and dismissing the case. (Pet.

App. 99a-101a).

B.P.J. appealed to the Fourth Circuit. WVSSAC

ÀOHG D FURVVDSSHDO DVVHUWLQJ WKDW WKH 'LVWULFW &RXUW

erred in denying its motion for summary judgment. The

Fourth Circuit dismissed WVSSAC’s cross-appeal on the

grounds that WVSSAC “is not aggrieved by the district

court’s judgment but seeks to defend a favorable judgment

on alternative grounds.” (Pet. App. 10a). However, the

Fourth Circuit stated that WVSSAC “may defend its

favorable judgment ‘on any basis supported by the record’

– including arguments the district court rejected.” (Pet.

App. 12a). The Fourth Circuit then addressed WVSSAC’s

arguments and agreed with the District Court based upon

VLPLODUO\ÁDZHGDQDO\VLV 3HW$SSDD 5HO\LQJRQ

the concept of “pervasive entwinement” generally, the

Fourth Circuit concluded that WVSSAC is a state actor,

without identifying any “action” by WVSSAC in connection

with B.P.J. or the Act. For “essentially the same reasons,”

the Fourth Circuit concluded that WVSSAC “exercises

VXIÀFLHQWFRQWURORYHUGLUHFWIXQGLQJUHFLSLHQWVWRPDNH

it a Title IX defendant.” (Pet. App. 15a). Finally, the

Fourth Circuit rejected WVSSAC’s argument that the

claims against it are not ripe for adjudication because

the possibility of any action by WVSSAC, and thus the

possibility of any injury, are remote and speculative. (Pet.

App. 15a-16a). The Fourth Circuit ignored the factual

record and stated that “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.” (Pet. App. 16a). In fact,

it is undisputed that any policy to conform to the Act’s

requirements would be promulgated by the State Board

of Education and implemented at the school level, not by

WVSSAC.11

On the merits, a divided panel of the Fourth Circuit

reversed Defendants generally with respect to the Title IX

claim, remanding to the District Court with instructions

to enter judgment in favor of B.P.J. and vacated the

District Court’s granting of summary judgment on the

Equal Protection claim, remanding to the District Court

for further proceedings. (Pet. App. 40a).

11. Fourth Circuit Joint Appendix Vol. 3, JA1533-1534 (ECF

53-3).

$FRQFXUUHQW3HWLWLRQIRU&HUWLRUDULLVEHLQJÀOHGE\

the State of West Virginia and others on the merits of

whether the Act is constitutional and complies with Title

IX. State of West Virginia v. B.P.J., No. 24-__. WVSSAC

petitions separately to seek review of the lower courts’

erroneous conclusion that WVSSAC is a state actor

subject to scrutiny for Equal Protection and Title IX

purposes in the context of the Act. This is an important

issue to WVSSAC and all similar organizations who do

not control State policies but who may be called upon in

the courts to defend such policies by overzealous litigants.

WVSSAC is a private corporation that has not acted and

is not slated to act according to the legislation. Thus, it

cannot have been engaged in “state” action. WVSSAC has

QRWH[FOXGHGGHQLHGEHQHÀWVWRRUGLVFULPLQDWHGDJDLQVW

B.P.J. WVSSAC does not receive federal funds, so it is

not subject to Title IX. This Court should reverse and

remand with instructions to grant summary judgment

to WVSSAC on the basis that it is not a state actor and

is not subject to Equal Protection or Title IX scrutiny in

connection with the Act.

REASONS FOR GRANTING THE WRIT

The Courts Below Have Lost Sight of the Channel

Markers for State Actor, Mandating Course

Correction by this Court Now.

More than twenty years ago, this Court issued

Brentwood Academy v. Tennessee Secondary School

Athletic Ass’n, 531 U.S. 288 (2001), and in the intervening

decades, lower courts have attempted to employ the state

actor rubric with varying success and rigor. Where this

Court’s state actor determinations evolved over time

into seven discrete tests,12 both the District Court and

the Fourth Circuit have declined to follow the channel

PDUNHUV ÁRDWHG E\ WKLV &RXUW RSWLQJ WR DGRSW PRUH RI

the ‘I know it when I see it’13 approach to the conversion

of private industry into state actor. It is imperative that

WKLV &RXUW FRXUVH FRUUHFW UHLQVWLWXWH DQG UHDIÀUP WKH

distinctions between industry and state.

This Court has recognized, applauded, and upheld

many of the positive attributes of private industry, along

with its inherent value socially and economically, and has

worked to provide room for it in regulatory settings.14 Yet

the courts below are suspicious of industry’s access to and

alleged monopoly of state enterprise. More than one court

has linked private industry’s disinclination to be ‘state’

to an alleged effort to evade responsibility for its acts.15

However, if the state connection guarantees wealth or

at least a steady stream of work, why then does private

LQGXVWU\ÀJKWDVVLPLODWLRQLQWRVWDWHKRRG"/LDELOLW\DIWHU

all, is a part of doing business, as demonstrated by any

reading and consideration of these arguments. At the end

of the day, why is the distinction important?

12. Julie K. Brown, Less Is More: Decluttering the State

Action Doctrine, 73 Mo. L. Rev. 561, 564-67 (2008), citing public

function test, state compulsion test, nexus test, state action test,

entwinement test, joint participation, control by a state agency.

13. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

14. Loper Bright Enterprises v. Raimondo, 603 U.S. ___

(2024) at Concurrence, citing “practical and real protections for

individual liberty,”

15. Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802,

814-15 (2019); Williams v. Bd. of Regents, 477 F.3d 1282 (11th Cir.

2007).

The key concepts at issue have been and remain

entwinement and control. Yet, some action must be at issue

before private industry can be considered a state actor.

In Peltier v. Charter Day School, Inc., the District Court

held that “’[i]n assessing a private actor’s relationship with

the state for purposes of an Equal Protection claim, the

FRXUWPXVWGHWHUPLQHZKHWKHUWKHUHLVDVXIÀFLHQWO\FORVH

nexus between the defendant’s challenged action and the

state so that the challenged action may be fairly treated

as that of the state itself.’” 37 F.4th 104, 115 (4th Cir. 2022)

(emphasis added), quoting Mentavlos v. Anderson, 249

F.3d 301, 314 (4th Cir. 2001). There is no such action here.

Without recognizing the disconnect, the lower courts rely

upon Brentwood, in which the alleged “challenged action”

is the sanction imposed by the Athletic Association upon the

$FDGHP\IRUDOOHJHGXQGXHLQÁXHQFHLQUHFUXLWLQJ86

at 293. The District Court further relied upon Peltier, in

which a dress code is the “challenged action.” B.P.J. relies

upon Communities for Equity v. Michigan High School

Athletic Association, 80 F. Supp. 2d 729, 735 (W.D. Mich.

2000), in which the “challenged action” was the Athletic

Association’s alleged discrimination against female athletes

inter alia by operating shorter seasons for female athletes.

None of these authorities considers the instance of an entity

that has not undertaken any action at all. The lower courts

failed to identify any “challenged action” undertaken by

WVSSAC relative to B.P.J. that could serve as a predicate

for the secondary analysis of whether such “challenged

action” should be considered “state action.”

While severely discounted by the Fourth Circuit,

Smith v. NCAA16 provides the only test for when control

16. Smith v. NCAA, 266 F.3d 152 (3d Cir. 2001).

and authority become ‘controlling authority’ so as to

federalize a private association, corporation, or non-state

actor, similar to WVSSAC. Smith’s analysis is salient to

the Court and these parties. Control and authority do

not become ‘controlling authority,’ absent more. Smith

provides the rubric for determining ‘more.’

Where this Court has held that it is bound by a state

court’s interpretation of state law,17 the courts below

have exceeded any and all rulings of the Supreme Court

of Appeals of West Virginia in exceeding West Virginia’s

determinations relative to WVSSAC.18 Where the Fourth

&LUFXLW ÀQGV HQWZLQHPHQW EHWZHHQ :966$& DQG WKH

Act,19 it violates its own precedent in that there is no nexus

whatsoever between WVSSAC and the Act. 20 The Fourth

&LUFXLWÀQGVWKDWZKLOH:966$&LVQHLWKHUDGLUHFWQRU

an indirect funding recipient, nonetheless, by apparent

17. Wash. State Dep’t of Licensing v. Cougar Den, Inc., 586

U.S. 347, 357(2019), citing Johnson v. United States, 559 U.S. 133

(2010).

18. See Pet. App. 14a-15a, citing a footnote in Israel v. W.

Va. Secondary Sch. Activities Comm’n, 388 S.E.2d 480 n.4.(W.

Va. 1989) (non-precedential in itself) that is more notable for what

it doesn’t say than what it does.

19. Pet. App. 14a-15a.

20. “Constitutional standards are invoked only when it can

be said that the State is responsible IRU WKH VSHFLÀF FRQGXFW RI

which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 991,

1004, (1982). “A State normally can be held responsible for a

private decision only when it has exercised coercive power or has

SURYLGHGVXFKVLJQLÀFDQWHQFRXUDJHPHQWeither overt or covert,

that the choice must in law be deemed to be that of the State.” Id.

(emphasis added).

DOFKHP\ :966$& H[HUWV VXIÀFLHQW FRQWURO RYHU GLUHFW

funding recipients to convert the Commission into a Title

IX defendant. 217KH)RXUWK&LUFXLW·VÀQGLQJVXSSRUWLQ

Peltier v. Charter Day School, Inc., is perplexing in that,

in Peltier, the Fourth Circuit held that the pervasive

entwinement ‘must be with the challenged conduct.’

Peltier v. Charter Day School, 37 F.4th at 116, citing

Blum v. Yaretsky, 457 U.S. at 1004; Brentwood, 531 U.S.

at 298. Demonstrating ‘if it quacks, it’s a duck’ and ‘if I’m

a hammer, it’s a nail’ reasoning, the Fourth Circuit found

WVSSAC to be state actor without considering B.P.J.’s

RZQFRQFHVVLRQ²:966$&LVLGHQWLÀHGQRZKHUHLQWKH

statute as enacted and has no role in the process. 22

In this instance, the courts below operated in a

factual vacuum, applied the conventional wisdom of

‘activity commissions,’ and were demonstrably wrong as

a matter of law and fact relative to WVSSAC, further

littering the coastline of ‘state actor’ and injuring

WVSSAC. With little more rigor or nuance than “if it

quacks, it’s a duck” reasoning, the courts failed to parse

or consider meaningfully the clarity of NCAA v. Smith23

or the solid ground of Peltier v. Charter Day School.24

Conversely, these federal courts wandered between and

among the channel markers, adrift, grasping at solid

ground regardless of its applicability. As this Court has

repeatedly and recently found, without oversight and

21. Pet. App. 15a.

22. Fourth Circuit Joint Appendix Vol. 1, JA0424-0429 (ECF

53-1); Pet. App. 112a.

23. Smith, 266 F.3d 152.

24. 37 F.4th 104 (4th Cir. 2022).

FRXUVH FRUUHFWLRQ FRXUWV FDQ UHVRUW WR UHÁH[LYH DFWLRQ

rather than analysis. Rather than take on meaningful

analysis, the courts below fall prey to narrative bias,

hammering toward a nail, 25ÀQGLQJUHVROXWLRQLQDGXFN 26

As a result, the shoreline is cluttered with parchment

barriers, with courts overwhelmed in their “torchless

search for a way out of a damp echoing cave.” 27

The Fourth Circuit further found that “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.” 28

However, after citing a key determinant, the Fourth Circuit

IDLOHGWRDFFXUDWHO\GHÀQHDQGDSSO\WKLVNH\GHWHUPLQDQW

adopted by this Court over time. 29 Indeed, neither the

District Court nor the Fourth Circuit considered ‘control’

in the legal (as opposed to anecdotal) sense. That is, as a

matter of law, giving activity commissions the power to

25. Am. Express Co. v. Italian Colors Rest., 570 U.S. 228,

252 (2013).

26. Sessoms v. Grounds, 776 F.3d 615, 617 (3d Cir. 2015).

27. Charles. L. Black, Jr., Foreword: “State Action,” Equal

Protection, and California’s Proposition 14, 81 Harv. L. Rev. 69,

95 (1967).

28. B.P.J. v. State Board, 98 F.4th 542, 554, (4th Cir. 2024)

quoting Horner v. Ky. High Sch. Athletic Ass’n, 43 F.3d 265, 272

(6th Cir. 1994) (emphasis removed); see Williams, 477 F.3d at 1294

(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”).

29. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,

531 U.S. 288 296 (2001)

enforce the eligibility rules adopted by the State Board

and member schools against the students directly does

not constitute “ced[ing] authority.”30 Where schools have

a voluntary relationship with commissions and have

retained the authority to withdraw from same, courts

KDYHGHFOLQHGWRÀQGFRQWURO 31 That is, inherent in choice

is a lack of meaningful control.

Schools can indeed withdraw from WVSSAC, and

private schools have done so. 32 While withdrawal means

that the member schools would be excluded from the

championships, they nonetheless may participate in sports

and activities as long as they remain a ‘school.’33 However,

reviewing courts have found that even if resignation meant

no participation, even if it would ‘thwart’ the schools’

desire to ‘remain a powerhouse’ among the schools against

which it competes, nonetheless, the ability to withdraw is

a “’practical alternative to compliance with [WVSSAC’s]

demands,’” such that WVSSAC does not control any

of the member programs. 34 No school is forced to join,

another key determinant, 35 and each school must elect

30. Id.

31. Smith, 266 F.3d at 159.

32. Deposition of Dolan [Executive Director, WVSSAC]

Fourth Circuit Joint Appendix Vol. 3, JA1408 (ECF 53-3).

33. Deposition of Dolan [Executive Director, WVSSAC]

Fourth Circuit Joint Appendix Vol. 3, JA1409 (ECF 53-3).

34. Smith, 266 F.3d at 159, quoting Cureton v. NCAA, 198

F.3d 107, 116-18 (3d Cir. 1999).

35. Smith, 266 F.3d at 159.

to participate. 36 The fact that each member school has

an opportunity for input on the rules has been found

LQVXIÀFLHQW WR GHPRQVWUDWH control, just as has their

voluntary decision to follow them. 37 As for the eligibility

enforcements, should member schools or athletes risk

sanctions by violating the regulations or rules, that

choice on their part demonstrates a lack of control by

WVSSAC. The fact that “’options [may be] unpalatable

does not mean that they were nonexistent.’”38 And it is the

option to be a member or withdraw, the option to follow

the rules or face sanctions that undercuts any actionable

understanding of control in which to anchor Plaintiff’s

Equal Protection claim. Finally, the same analysis

applies whether the nomenclature is controlling authority,

pervasive entwinement, public entwinement – the analysis

of control “is no less rigorous.” 39

While the Supreme Court’s ‘interpretation of state

and local law is not binding on state courts,’40 this Court

is bound by a state court’s interpretation of state law.41

Therefore, it is of some great moment that the District

36. Deposition of Dolan [Executive Director, WVSSAC]

Fourth Circuit Joint Appendix Vol. 3, JA1378 (ECF 53-3).

37. Smith, 266 F.3d at 159, quoting NCAA v. Tarkanian,

488 U.S. 179, 195 (1988).

38. Smith, 266 F.3d at 156, quoting Tarkanian, 488 U.S. at

198 n.19.

39. Smith, 266 F.3d at 160.

40. Fulton v. City of Phila., 592 U.S. 522 n.21 (2021), citing

West v. Am. Tel. & Tel., 311 U.S. 223, 236 (1940).

41. Cougar Den, Inc., 586 U.S. 347 (2019).

Court and Fourth Circuit overruled and undercut the

express determinations made by the Supreme Court of

Appeals of West Virginia when they misstated and miscast

West Virginia law to accomplish federal ends. Indeed, the

Supreme Court of Appeals of West Virginia has considered

:966$&RQWZHOYHVHSDUDWHRFFDVLRQVZLWKRXWDÀQGLQJ

that SSAC is a state actor.

WVSSAC respectfully disagrees with the Fourth

Circuit’s reasoning that “West Virginia’s own highest

court has treated the Commission as a state actor for

purposes of federal and state constitutional challenges,”

so it must also be a state actor here. (Pet. App. 14a).

Contrary to the Fourth Circuit’s suggestion, neither

Israel v. West Virginia Secondary Schools Activities

Commission, 182 W. Va. 454, 388 S.E.2d 480 (1989), nor

Jones v. West Virginia State Board of Educ. et al., 218 W.

9D6(G VSHFLÀFDOO\DGGUHVVHVWKH

issue of whether WVSSAC is a state actor for purposes

of Equal Protection claims or otherwise. The Jones Court

considered whether the plaintiff’s claims sound in Equal

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DFWRU· D ÀQGLQJ LW QHYHU UHDFKHV DV WR :966$& 7KH

Israel Court embeds in footnote 4 a list of organizations in

other jurisdictions without ever undertaking any analysis

whatsoever of their similarities to WVSSAC or vice versa

under the ‘state actor’ rubric. Reliance on the footnote in

Israel is problematic for the additional reason that in West

Virginia, footnotes are precisely and only obiter dicta. If

West Virginia’s Supreme Court believed that WVSSAC

were a state actor, the Court could and would have stated

it outright but declined to do so.

Emblematic of the torchless search in the damp cave

is the fact that WVSSAC is not slated to act relative to

B.P.J. It is not envisioned as having any role in activating

or enforcing this law. Further, WVSSAC ascribes to the

spirit of Title IX but is not required by law to follow its

precepts. While it has been involved in litigation in state

and federal courts, WVSSAC has never been adjudged a

state actor until this litigation – and here, on the basis of

minimal discovery and no evidence that it acted in any way,

let alone as a ‘state actor.’ Indeed, WVSSAC expressly

took no position on Plaintiff’s motion for preliminary

injunction,42 on the basis that B.P.J.’s involvement in sports

did not impact WVSSAC’s policies in any way nor did

WVSSAC have to adjust its policies or take any action or

refrain from acting for B.P.J. to participate.

The entw inement test has been variously and

illogically applied. However, in cases determining whether

similar associations are state actors, the analysis is

necessarily tied to action on the part of the association. In

Christian Heritage Acad. v. Oklahoma Secondary School

Activities Association (OSSAA), 483 F.3d 1025 (10th Cir.

2007), the Tenth Circuit determined that Oklahoma SSAA

was a state actor in connection with the challenged SSAA

action, which was membership requirements that differed

for public and parochial schools. In Crane v. Indiana High

School Athletic Ass’n, 975 F.2d 1315 (7th Cir. 1992), both

the majority and Judge Posner in dissent agreed that the

Indiana HSAA was a state actor, where the challenged

HSAA action was a transfer eligibility rule that prohibited

the plaintiff’s involvement in the state golf tournament.

Equal variability can be found in Title IX determinations

over time. In Parker v. Indiana High School Athletics

42. District Court ECF 2, 47.

Association (IHSAA), 2009 U.S. Dist. LEXIS 113395

(S.D. In. 2009), a Title IX suit against Indiana HSAA was

dismissed because the IHSAA is not a direct recipient of

federal funds. On reconsideration in Parker v. IHSAA,

2010 U.S. Dist. LEXIS 23409 (S.D. In. 2010), the District

&RXUW DIÀUPHG WKDW LW GRHV QRW DFFHSW WKH FRQWUROOLQJ

authority theory for Title IX suits, interpreting NCAA

v. Smith. In Johnny’s Icehouse, Inc. v. Amateur Hockey

Ass’n, 134 F. Supp. 2d 965 (N.D. Ill. 2001), the court

distinguished the ‘controlling authority’ theory and held

that an analogous high school athletic association is not

a recipient under Title IX. Here conversely, WVSSAC is

not a direct nor an indirect recipient of federal funds, has

no ’controlling authority’ (NCAA v. Smith) and yet is held

to answer under Title IX.

It is imperative that this Court course correct now.

The lower courts have misapplied and mischaracterized

NCAA, Brentwood and Peltier in order to reach the

determination that WVSSAC is a state actor. WVSSAC

asks this Court to pause and re-establish the true path.

II. WVSSAC is aggrieved by the lower courts’ decisions.

$IWHUÀQGLQJWKDW:966$&GLGQRWMRLQWKHGHIHQVH

group in challenging the constitutional claims, 43 the

Fourth Circuit rolled WVSSAC into that defense group.

Because that defense group prevailed below, the Fourth

Circuit found WVSSAC had not been aggrieved and,

therefore, could not appeal. 44 Stated the Court, “we

dismiss the Commission’s cross appeal (No. 23-1130)

because the Commission is not aggrieved by the district

43. Pet. App. 10a.

44. Pet. App. 10a.

court’s judgment but seeks to defend a favorable judgment

on alternative grounds.”45 However, the Fourth Circuit

further stated that WVSSAC “may defend its favorable

judgment ‘on any basis supported by the record’ –

including arguments the district court rejected.”46

WVSSAC is indeed injured by the District Court’s

GHWHUPLQDWLRQ DQG )RXUWK &LUFXLW·V DIÀUPDWLRQ WKDW LW

is state actor. WVSSAC has been injured47 by B.P.J.’s

assertions and the courts’ failure to parse the state actor

rubric with more care. State actor determination changes

industry’s legal duties, providing it all of the particularized

liabilities of being both state and private industry but

none of the immunity inherent in state.48 Industry comes

under increased scrutiny in that a state actor can become

subject to FOIA,49 along with other regulatory regimes

saved solely for ‘state.’ 50 Where private corporations

45. Pet. App. 10a.

46. Pet. App. 12a.

47. Rainwater v. Bd. of Regents of the Univ. of Okla., No.

CIV-19-382-R, 2020 U.S. Dist. LEXIS 12867, *7 (W.D. OK March

11, 2020).

48. Richardson v. McKnight, 521 U.S. 399, 404-05 (1997).

49. See. e.g., Nabholz Constr. Corp. v. Contractors For Pub.

Prot. Ass’n., 37 Ark. 411, 416 (2007), 266 S.W.3d 689, 692 (2017);

Better Gov’t Ass’n v. Ill. High Sch. Assn., 89 N.E.3d 376 (Ill. 2017).

50. See West Virginia Civil Action No. 23-C-101, in which

the Circuit Court of Wood County, West Virginia, has converted

WVSSAC into ‘state’ (not ‘state actor’) in reliance on the District

&RXUW·VDQG)RXUWK&LUFXLWRSLQLRQVÀQGLQJMXULVGLFWLRQWKHUHE\

under West Virginia’s Human Rights Act (W. Va. Code §16B-17-1),

pending now on extraordinary process before Supreme Court of

Appeals of West Virginia (24-213).

maintain their finances and accounts largely without

governmental intervention and oversight, a finding of

state actor can convert private moneys into public moneys

with commensurate oversight. Indeed, following the

District Court’s ruling in this matter, an effort was made

in West Virginia to legislate state oversight of WVSSAC’s

ÀQDQFHVEXWZDVYHWRHGE\WKH*RYHUQRU51 Where private

industry has acted as private industry, an after-the-fact

determination of ‘state actor’ applies a different regulatory

and legal standard, a destabilizing, undermining and

unnatural process.52

WVSSAC has been injured by this litigation and

by the decisions of the lower courts relative to the state

actor issue. It is a private corporation whose arguments

and identity have been bootstrapped to the litigation

surrounding the Act without any adequate basis.

III. The District Court and Fourth Circuit are wrong.

In order to fall within the mandates of Title IX,

:966$&ZRXOGQHHGWREHDUHFLSLHQWRIIHGHUDOÀQDQFLDO

assistance. Pursuant to 20 U.S.C. § 1681, “[n]o person in

the United States shall, on the basis of sex, be excluded

IURP SDUWLFLSDWLRQ LQ EH GHQLHG WKH EHQHÀWV RI RU EH

subjected to discrimination under any education program

or activity receiving Federal financial assistance.” 53

51. 2023 SB 667 [§18-2-25e. Requiring the Legislative

Auditor conduct periodic performance audits of the West Virginia

Secondary Schools Activities Commission] (vetoed).

52. Labrador v. Poe, 144 S. Ct. 921 (2024).

53. Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019):

To state a claim under [Title IX], a plaintiff must show

that the alleged constitutional deprivation at issue

However, the evidence shows that funding comes from

corporate sponsorships, advertising revenue, and gate

proceeds from championship meets and tournaments. 54

:KHUHDV :966$& PLJKW UHFHLYH GH PLQLPLV ÀQHV

or fees from schools or coaches, those moneys have never

been determined to be federal funds. Assuming arguendo

that they could be found to be federal funds, they would be

indirectly received, such that no contractual privity exists

between WVSSAC and the federal source of those funds.55

B.P.J.’s Equal Protection Clause claims are equally

dependent on WVSSAC’s being a ‘state actor.’56 That is,

occurred because of action taken by the defendant

“under color of . . . state law.” Philips v. Pitt Cty.

Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). “The

WUDGLWLRQDO GHÀQLWLRQ RI DFWLQJ XQGHU FRORU RI VWDWH

law requires that the defendant in a [Title IX] action

have exercised power ‘possessed by virtue of state

law and made possible only because the wrongdoer

is clothed with the authority of state law.’” West v.

Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 101 L. Ed. 2d

40 (1988) (quoting United States v. Classic, 313 U.S.

299, 326, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941)).

54. Fourth Circuit Joint Appendix Vol. 8, JA4193 (ECF 53-8).

55. Smith, 266 F.3d at 162, declining to apply Title IX on the

basis of indirect funding when the recipient did not assume control

the program that directly received the funds and was not in the

position to expressly reject/receive the funds dependent upon the

obligations inherent in that receipt.

56. “[R]ights under the Equal Protection Clause itself

arise only where there has been involvement of the State or of

one acting under the color of its authority. The Equal Protection

Clause does not . . . add anything to the rights which one citizen

has under the Constitution against another.” United Bhd. of

in a claim under the Fourteenth Amendment,

the defendant “must either be a state actor or

KDYHDVXIÀFLHQWO\FORVHUHODWLRQVKLSZLWKVWDWH

actors such that a court would conclude that

the non-state actor is engaged in the state’s

actions.” DeBauche v. Trani, 191 F.3d 499,

506 (4th Cir. 1999). Put another way, “private

activity will generally not be deemed ‘state

action’ unless the state has so dominated such

activity as to convert it to state action: ‘Mere

approval of or acquiescence in the initiatives of a

SULYDWHSDUW\·LVLQVXIÀFLHQWµId. at 507 (citation

omitted). 57

As demonstrated in the courts below and here, WVSSAC

is not a recipient of public moneys so as to convert it into

a ‘state actor.’ Beyond that, however, B.P.J. has alleged

that the delegation of the State’s authority to WVSSAC

converts WVSSAC into a ‘state actor’ as relates to

athletics and activities.586SHFLÀFDOO\3ODLQWLIIDVVHUWVWKDW

“Defendants are all governmental actors acting under

color of state law for purposes of 42 U.S.C. § 1983 and

the Fourteenth Amendment.”59 Conversely, WVSSAC is

differently situated as a matter of law.

Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 831

(1983) (internal quotation marks and citations omitted).

57. Shipman v. Balt. Police Dept., ELH-13-0396, 2014 U.S.

Dist. Lexis 59733 (D. Md. Apr. 29, 2014).

58. See First Am. Compl. (Fourth Circuit ECF 53-1) at JA04150416, JA0434, citing in pertinent part W. Va. Code §18-2-5; Jones v.

W. Va. State Bd. of Educ., 218 W. Va. 52, 61 (2005).

59. See First Am. Compl. (Fourth Circuit ECF 53-1) at

JA0434.

Whereas the State and County Boards delegate

authority to WVSSAC, the key distinction for determining

that WVSSAC would be a ‘state actor’ is whether WVSSAC

truly assumes control of a federally funded program.60

Reviewing courts have found expressly that giving

WVSSAC the power to enforce the eligibility rules adopted

by the State Board and member schools directly against

the students does not constitute “ced[ing] authority.”61

Here, the schools have a voluntary relationship with

WVSSAC and have retained the authority to withdraw

from the association – also found to be a key determinant

DQGDIDFWRUPLWLJDWLQJDJDLQVWDQ\ÀQGLQJRIFRQWURO62

Schools can indeed withdraw from WVSSAC, and private

schools have done so.63 As for the eligibility enforcements,

should member schools or athletes risk sanctions by

violating the regulations or rules, that choice on their

part demonstrates a lack of control by WVSSAC. The

fact that “’options [may be] unpalatable does not mean

that they were nonexistent.’”64 Finally, the same analysis

applies whether the nomenclature is controlling authority,

pervasive entwinement, public entwinement – the analysis

of control “is no less rigorous.”65 Where the Fourth Circuit

distinguishes NCAA from WVSSAC, it does not attempt

60.

Smith v. NCEAA, 266 F.3d at 157.

61. Id.

62. Id. at 159.

63. Deposition of Dolan [Executive Director, WVSSAC]

Fourth Circuit Joint Appendix Vol. 3, JA1408 (ECF 53-3).

64. Smith, 266 F.3d at 156, quoting Tarkanian, 488 U.S. at

198 n.19 (emphasis added).

65. Smith, 266 F.3d at 160.

to parse the logic of control set out clearly in Smith.66

Indeed, where control is the sine qua non of state, the

Fourth Circuit sidestepped any meaningful analysis of

what it means to control and judged WVSSAC to be no

different than any other activities commission.

In other instances, once again, federal courts

have considered Title IX and Fourteenth Amendment

challenges brought as against what might appear to be

parallel athletic associations. See, e.g., Communities for

Equity v. Michigan High School Athletic Association,

80 F. Supp. 2d 729 (W. D. Mich. 2000) (alleging that

MHSAA discriminated against female athletes based on

inequities in programs including non-traditional and/or

shorter seasons and different rules); Alston v. Virginia

High School League, Inc., 144 F. Supp.2d 526 (W. D. Va.

1999) (alleging that VHSL denied certain female public

VFKRRODWKOHWHVHTXDOWUHDWPHQWRSSRUWXQLWLHVDQGEHQHÀWV

based on their sex in violation of Title IX67 ). Beyond

those instances, the United States Court of Appeals for

the Sixth Circuit considered Yellow Springs Exempted

Village School District Board of Education v. Ohio

High School Athletic Association, 647 F.2d 651 (6th Cir.

1981) (challenging coeducational teams in contact sports

as a violation of Title IX), and Brentwood Academy v.

Tennessee Secondary School Athletic Association, 180

F.3d 758 (6th Cir. 1999), rev’d, 531 U.S. 208 (2001).

66. Pet. App. 15a.

67. But see Yellow Springs Exempted Village School District

Board of Education v. Ohio High School Athletic Association,

)G WK&LU ÀQGLQJWKDWDQ\UHVROXWLRQE\

necessity involves the Fourteenth Amendment as well.

Among the factors these courts – including this Court

– considered in determining the propriety of holding the

associations accountable under federal law were sources

of funding and whether the associations adopted the

provisions that were alleged to be violations of federal

law. That is, more particularly, the courts considered

whether the associations are federally funded or receive

support or dues from federally funded programs and/or

whether the associations further the objectives of federally

funded programs. In terms of Equal Protection, this

Court in Brentwood considered whether the Tennessee

association was a ‘state actor’ given the depth with which

its operations were intertwined with a single state’s

(Tennessee’s) activities (as compared to the interstate

impact of the NCAA 68). The District Courts in both

Alston and Communities addressed Equal Protection,

considering whether the athletic (as opposed to activities)

associations were ‘state actors,’ whether they served

a public function, and/or whether they had a symbiotic

relationship with the State and the regulated activity.69

In determining whether the associations were subject

to Title IX, then, the courts considered whether the source

RIIXQGLQJZDVSXEOLFLQFOXGLQJÁRZWKURXJKIXQGLQJIURP

school dues, and/or whether the associations controlled

programs or practices in the member school and/or whether

the associations held functions at school facilities and/or

68. Tarkanian, 86 ÀQGLQJ inter alia that NCAA

“was not a state actor because it was acting under the color of its

own policies rather than under the color of state law and because

XQLYHUVLW\GLGQRWGHOHJDWHSRZHUWRSHWLWLRQHUWRWDNHVSHFLÀFDFWLRQ

against university or respondent.”

69. See Alston v. Virginia High School League, Inc., 144 F.

Supp.2d 526, 537 (W. D. Va. 1999).

whether the associations were involved in some manner with

every school within the state (as opposed to organizations or

programs across more than one state). In overview, Michigan

High School Athletic Association (Michigan), Ohio High

School Athletic Association (Ohio), Tennessee Secondary

School Athletic Association (Tennessee) and WVSSAC are

SULYDWH QRQSURÀW RU QRWIRUSURÀW FRUSRUDWLRQV \HW 2KLR

Tennessee and Michigan receive some funding through

member schools. Virginia High School League (Virginia) is

DSXEOLFIRUSURÀWFRUSRUDWLRQWKDWKDVRQO\SXEOLFVFKRROV

as members and is funded by member dues.70

Unlike Michigan, Tennessee, Ohio and Virginia,71

however, WVSSAC receives no dues whatsoever from

member schools and has not for at least twenty years.72

Also, conversely to the Virginia High School League,

WVSSAC includes parochial schools among its number,

LQFOXGLQJDVLJQLÀFDQWQXPEHURIWKHPDWWKHPLGGOHVFKRRO

level, which schools receive no federal funds and yet who

participate in WVSSAC programs.73

70. Id. at 527.

71. Yellow Springs, )GDW ÀQGLQJWKDW2+6$$LVVXHV

regulations that reach deep into school administration, including

regulating the member of school administration to handle sports

ÀQDQFHVAlston, 144 F Supp. 2d at 527 (accepting dues from federally

funded School); Communities, 80 F. Supp. 2d at 732 (noting that the

bulk of the money is from gate receipts but that MSHAA regulates

within its member School by requiring that the member School adopt

the “Handbook as their own and agree to be primarily responsible

for their enforcement”).

72. Deposition of Dolan [Executive Director, WVSSAC]

Fourth Circuit Joint Appendix Vol. 3, JA1378 (ECF 53-3).

73. www.wvssac.org/school-directory

In considering the Fourteenth Amendment, this Court

found in Brentwood that the Tennessee Association was

inextricably bound and intertwined with its member

schools so as to be a ‘state actor.’ As analyzed above,

however, that entwinement requires a level of control and

federal involvement not present with WVSSAC. WVSSAC

does not receive federal funds and does not mandate

membership (nor include in its membership every public

or parochial school in the state). Plaintiff concedes (indeed,

asserts) that WVSSAC’s policies and regulations make

no gender determinations.74 WVSSAC does not build or

challenge rosters, and, perhaps most pointedly, WVSSAC

does not have an express or implied role under the Act.

Indeed, where the Act provides express remedies against

some actors, WVSSAC is not referenced in the Act nor is

a remedy suggested as against it.

In Yellow Springs Exempted Village School District

Board of Education v. Ohio High School Athletic

Association, 647 F.2d 651 (6th Cir. 1981), the Appeals

Court considered the applicability and enforcement of

Title IX relative to co-educational sports, that is, whether

boys and girls may play basketball on the same team.

In considering whether Title IX applied to OHSAA, the

Court found that

the focus of both Title IX and the regulations is

on “recipients.” It is federal aid to “recipients”

that will be cut off if Title IX is not complied

with. “Recipients” bear ultimate responsibility

74. Declaration of Heather Jackson (Fourth Circuit ECF

53-1) JA0061; see also First Am. Compl. (Fourth Circuit ECF

53-1) at JA0429.

for providing an equal educational opportunity.

The OHSAA is not a “recipient,” and does not

bear the burden of non-compliance, so may not

adopt a rule which limits the ability of recipients

to furnish girls the same athletic opportunities it

provides for boys. The OHSAA has not claimed

that it attempted to frame rules with an eye

to achieving the goal of universally applicable

equal athletic opportunity. Thus, based on this

record, we conclude that the determination as

to compliance with Title IX must be made by

individual School, not the OHSAA.75

Likewise here, pursuant to the direct language of the

statute, WVSSAC will not promulgate the regulations

envisioned under the statute. The Act provides for

the State Board to promulgate rules to implement the

section,76 yet in West Virginia, State Board rules are

neither promulgated nor enforced by WVSSAC but rather

are embedded in WVSSAC’s rule books, where only

the State Board can revise, amend, provide waivers.77

(OLJLELOLW\HQIRUFHPHQWDVDPDWWHURIODZLVLQVXIÀFLHQW

to convert WVSSAC into a state actor.78

75. Yellow Springs, 647 F.2d at 656.

76. Pet. App. 115a.

77. Deposition of Dolan [Executive Director, WVSSAC]

Fourth Circuit Joint Appendix Vol. 3, JA1400 (ECF 53-3),

testifying that the State Board’s 2.0 rule is embedded in

WVSSAC’s regulation book but remains the State Board’s rule.

See also Deposition of Blatt [State Board of Education] Fourth

Circuit Joint Appendix Vol. 3, JA1531-1532 (ECF 53-3).

78. Smith, 266 F.3d at 159, quoting Cureton v. NCAA, 198

F.3d 107, 116-18 (3d Cir. 1999).

W VSSAC opens its membership to public and

parochial schools, functions outside any concept of ‘state,’

and operates in conjunction with regional boards, drawing

RIÀFLDOV IURP ERWK :HVW 9LUJLQLD DQG 2KLR UHO\LQJ RQ

WZRORFDOERDUGVRIRIÀFLDOVWKDWDUHLQWUDVWDWH0LG2KLR

Valley Local Board and the West Virginia Ohio Local

Board. The Supreme Court of Appeals of West Virginia

has expressly found that WVSSAC is not a state agency

on the basis that it has been a voluntary association

since 1916 (and was not created nor empowered by the

Legislature); it is not funded by public moneys; and not all

public or private schools in West Virginia have elected to

belong.79 The relevant WVSSAC regulations are uniform

across the board in providing one set of regulations for

boys and girls. 80

The Fourth Circuit failed to understand how the

pre-enforcement review defense operated here, arguing

ripeness from B.P.J.’s perspective rather than any duty

imposed upon WVSSAC under the Act. 81 WVSSAC has

never asserted or opined relative to the ripeness of B.P.J.’s

claims generally – but rather only the ripeness of those

claims as against WVSSAC. The Commission is not

referenced in the Act, and no regulations exist that would

tie SSAC to the process of application or enforcement.

To date, WVSSAC has no role in nor relation to the Act.

Unlike the other parties, if WVSSAC were mandated to

79. Syl. pt. 2, 3, Mayo v. WVSSAC, 233 W. Va. 88, 96, 672

S.E.2d 224, 232 (2008).

80. Pet. App. 121a-123a; Of note, B.P.J. does not challenge

sex-separated teams. See Mem. (District Court ECF 19) at p. 16.

81. Pet. App. 15a-16a.

act, to perform some duty relative to the Act, nothing is

LGHQWLÀHGIRULW

To determine whether a case is ripe for preenforcement UHYLHZFRXUWV´EDODQFHWKHÀWQHVV

of the issues for judicial decision with the

hardship to the parties of withholding court

consideration.” Miller [v. Brown], 462 F.3d

[312], 319 (4th Cir. 2006) (citation omitted); see

Nat’l Park Hosp. Ass’n v. Dep’t of the Interior,

538 U.S. 803, 808, 123 S. Ct. 2026, 155 L. Ed. 2d

1017 (2003) VHWWLQJIRUWKÀWQHVVDQGKDUGVKLS

as the two predominant factors in determining

ULSHQHVV :LWKUHVSHFWWRÀWQHVVDFODLPLVXQÀW

for adjudication where the possibility of injury

is remote and the issues presented abstract.

Texas v. United States, 523 U.S. 296, 301, 118

S. Ct. 1257, 140 L. Ed. 2d 406 (1998) (“A claim

is not ripe . . . if it rests upon ‘contingent future

events that may not occur as anticipated, or

indeed may not occur at all.’” (quoting Thomas

v. Union Carbide Agric. Products Co., 473 U.S.

568, 580-81, 105 S. Ct. 3325, 87 L. Ed. 2d 409

(1985))); Miller, 462 F.3d at 319 (to be ripe, an

action in controversy must not be “dependent

on future uncertainties.”). 82

Plainly stated: The Act itself occasions no changes

in WVSSAC policies nor imposes any new duties on

WVSSAC. In fact, as Plaintiff’s Amended Complaint

indicates, the legislature considered including WVSSAC

82. Air Evac. EMS, Inc. v. Cheatham, 260 F. Supp. 3d 628,

636-37 (S.D. W. Va. 2017).

in the Act but ultimately chose not to do so. 83 This

statutory silence is reflected as well in the evidence

adduced in discovery, where the State Board’s rule will

be embedded in WVSSAC’s regulations, 84 where the

schools will create the rosters, 85 where eligibility fails

to rise to the level of ‘state action.’86 WVSSAC has no

actionable role, and the statute does not envision a cause

of action against WVSSAC for any statutory violation (no

doubt because enjoining or not enjoining WVSSAC does

not affect outcome under this statute). 87 Any ‘ripeness’

as to WVSSAC is dependent on a future act – that is, a

determination that WVSSAC will have a role under the

Act. To date, it has none.

B.P.J. avers that WVSSAC’s involvement is gender

and transgender neutral. 88 B.P.J. does not assert that

83. See First Am. Compl. (Fourth Circuit ECF 53-1) at

JA0424-0429.

84. Deposition of Mazza [Harrison County Board of

Education] Fourth Circuit Joint Appendix Vol. 3, JA1333 (ECF

53-3); Deposition of Dolan [Executive Director, WVSSAC] Fourth

Circuit Joint Appendix Vol. 3, JA1385, JA1399, JA1494-1495

(ECF 53-3); Deposition of Blatt [State Board of Education] Joint

Appendix Vol. 3, JA1531-1533 (ECF 53-3).

85. Deposition of Mazza [Harrison County Board of

Education] Fourth Circuit Joint Appendix Vol. 3, JA1332-1334

(ECF 53-3).

86. Smith, 266 F.3d at 156, quoting Tarkanian, 488 U.S. at

198 n.19.

87. Pet. App. 115a.

88. Jackson Declaration ¶25 (Fourth Circuit ECF 53-1)

JA0061; See Communities, )GDWÀQGLQJWKDW´>G@LVSDUDWH

WVSSAC’s regulations or programs violate any rights

in any way. Indeed, B.P.J. overlooks that the WVSSAC

regulations under which B.P.J. is now participating have

been neutral and inclusive at all times and required

no engineering or adjustment to allow for B.P.J.’s

participation, whether with or without an injunction in

place. B.P.J. has asserted that, prior to the Act, West

Virginia had “separate sports teams for boys and girls and

did not categorically bar girls like B.P.J. from competing

in school sports on girls’ teams.”89 In particular, as relates

to cross-country and track, all WVSSAC regulations

are uniform across the board in providing one set of

regulations for boys and girls.90 Further, Heather Jackson

DGPLWV WKDW ´YHULÀFDWLRQ RI ¶UHSURGXFWLYH ELRORJ\ DQG

genetics’ is not part of the routine sports physical exam

required by Defendant WVSSAC.”91 WVSSAC’s physical

examination form, the sole registration form WVSSAC

requires from athletes for participation, does not have the

athletes identify themselves by gender.92 WVSSAC does

treatment does not arise from any and all differences in treatment;

it occurs only where the offending party ‘treats some people less

favorably than others because of their race, color, religion, sex, or

national origin’” (emphasis in original).

89. See Mem. (District Court ECF 19) at p. 7, citing §1272-3.8 (Eligibility), which states in pertinent part “School may

sponsor separate teams for members of each sex where selection

for such teams is based upon competitive skill.”

90. Of note, B.P.J. does not challenge sex-separated teams.

See Mem. (District Court ECF 19) at p. 16. See also Pet. App.

121a-123a.

91. See Mem. (District Court ECF 19) at n.6.

92. Jackson Declaration ¶25 (Fourth Circuit ECF 53-1)

JA0061.

not have regulations that categorically ban transgender

athletes nor does WVSSAC’s enrollment paperwork

(physical exam) ask athletes to select or identify

themselves by gender. WVSSAC has not determined the

appropriate team for B.P.J. but only ‘received’93 the rosters

for cross-country or track with B.P.J.’s name in place. That

is, WVSSAC will not drive outcome, will not determine

WKHVROXWLRQZLOOQRWHQIRUFHWKH$FWDQGLVQRWLGHQWLÀHG

or called upon in the Act to do anything whatsoever. The

rush to include entities situated such as WVSSAC into the

UROOVRI¶VWDWHDFWRU·GHPRQVWUDWHVDÁDZDQGPLVGLUHFWLRQ

in the application of law to industry. The time to course

correct is now.

Including WVSSAC creates a substantial hardship

for it and yet does not advance B.P.J.’s case at all. The

District Court and the Fourth Circuit have focused upon

the Title IX and Equal Protection issues – certainly key

determinations. “The United States Constitution has

created a schism between governmentally controlled

domains and privately controlled sector,” 94 and WVSSAC

has found itself lost therein.

93. Deposition of Mazza [Harrison County Board of

Education] Fourth Circuit Joint Appendix Vol. 3, JA1335, JA1339

(ECF 53-3).

94. Julie K. Brown, Less Is More: Decluttering the State

Action Doctrine, 73 Mo. L. Rev. 561, 561 (2008).

CONCLUSION

C e r t ior a r i s hou ld b e g r a nt e d . S t at e a c t or

determinations arise regularly with courts applying ad

hoc ‘know them when I see them’ reasoning rather than

the tenets set out by this Court. The rulings below raise

VLJQLÀFDQW TXHVWLRQV ZRUWK\ RI UHYLHZ95 For WVSSAC

and for private industry generally, the time to clarify and

course correct is now and the opportunity is here. This

Court should grant certiorari and reverse.

Respectfully submitted,

ROBERTA F. GREEN

Counsel of Record

KIMBERLY M. BANDY

SHUMAN MCCUSKEY SLICER PLLC

1411 Virginia Street East, Suite 200

Charleston, WV 25301

(304) 345-1400

rgreen@shumanlaw.com

Counsel for Petitioner

95. Sandoval v. Texas, 144 S. Ct. 1166 (2024) (Dissent).

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

APRIL 16, 2024. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a

A PPEN DI X B — M EMOR A N DU M

OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

S OU T H ER N DI S T R IC T OF W E S T

VIRGINIA, CHARLESTON DI VISION,

FILED JANUARY 5, 2023 . . . . . . . . . . . . . . . . . . .76a

APPENDIX C — JUDGMENT ORDER OF THE

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST

VIRGINIA, CHARLESTON DI VISION,

FILED JANUARY 5, 2023 . . . . . . . . . . . . . . . . . . 101a

A PPEN DI X D — M EMOR A N DU M

OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

S OU T H ER N DI S T R IC T OF W E S T

VIRGINIA, CHARLESTON DIVISION,

FILED DECEMBER 1, 2021 . . . . . . . . . . . . . . . . .103a

APPENDIX E — RELEVANT STATUTORY

PROVISIONS & REGULATIONS . . . . . . . . . . . .112a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED APRIL 16, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-1078, No. 23-1130

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 OF WEST VIRGINIA;

LAINEY ARMISTEAD,

Intervenors—Appellees.

Appendix A

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 MORE SOCIETY; NATIONAL

ASSOCIATION OF EVANGELICALS; CONCERNED

WOMEN FOR AMERICA; INSTITUTE FOR

FAITH AND FAMILY; SAMARITAN’S PURSE;

WOMEN’S DECLARATION INTERNATIONAL

USA; 25 ATHLETIC OFFICIALS AND COACHES

Appendix A

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.

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

HEATHER JACKSON,

Plaintiffs—Appellees,

WEST VIRGINIA SECONDARY SCHOOL

ACTIVITIES COMMISSION,

Defendant—Appellant,

Appendix A

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, DEFENDANTS,

AND THE STATE OF WEST VIRGINIA;

LAINEY ARMISTEAD,

Intervenors.

THOMAS MORE SOCIETY; NATIONAL

ASSOCIATION OF EVANGELICALS; CONCERNED

WOMEN FOR AMERICA; INSTITUTE FOR

FAITH AND FAMILY; SAMARITAN’S PURSE;

WOMEN’S DECLARATION INTERNATIONAL

USA; 25 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;

Appendix A

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.

Appendix A

Appeals from the United States District Court for the

Southern District of West Virginia, at Charleston.

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

October 27, 2023, Argued; April 16, 2024, Decided

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.

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

EHRSHQWRVWXGHQWVRIWKHPDOHVH[µZKLOHGHÀQLQJ´PDOHµ

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

sex-differentiated 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

transgender girl who takes puberty blocking medication

DQGKDVSXEOLFO\LGHQWLÀHGDVDJLUOVLQFHWKHWKLUGJUDGH

from participating in her school’s cross country and track

teams. We hold it cannot.

Appendix A

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).

1RUGRHVWKH$FWUHSUHVHQW:HVW9LUJLQLD·VÀUVWHIIRUW

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.

Appendix A

The Act worked a sea change in how West Virginia

decides which teams a student can participate on. Its

ÀUVW RSHUDWLYH SURYLVLRQ UHTXLUHV DOO SXEOLF KLJK VFKRRO

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.”

G F 7KH $FW·V ÀQDO VXEVWDQWLYH SURYLVLRQ

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.’” § G F 7KH$FWGHÀQHV´PDOHµ

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

VH[ZDVDVVLJQHGDVPDOHEXWVKHKDVSXEOLFO\LGHQWLÀHGDV

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

Appendix A

Equal Protection Clause and Title IX. The State of West

9LUJLQLD LQWHUYHQHG DV D GHIHQGDQW DQG %3- ÀOHG DQ

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 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

FURVVFRXQWU\DQGWUDFNWHDPVIRUJLUOVÀUVWXQGHUWKH

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.

10a

Appendix A

II.

We begin our review of the parties’ claims with two

procedural matters. First, we conclude we have appellate

MXULVGLFWLRQ EHFDXVH WKH GLVWULFW FRXUW HQWHUHG D ÀQDO

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.

“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.

§ ZKLFKOHWVXVKHDUDSSHDOVIURP´ÀQDOGHFLVLRQVµ

´2UGLQDULO\DGLVWULFWFRXUWRUGHULVQRW¶ÀQDO·XQWLOLWKDV

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

11a

Appendix A

WKRVHÀOHGE\WKHUHPDLQLQJGHIHQGDQWV$WÀUVWJODQFH

based solely on the district court’s summary judgment

RSLQLRQLWORRNVOLNHZHGRQRWKDYHDQDSSHDODEOHÀQDO

decision because the court never disposed of B.P.J.’s claims

against the Commission.

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

ZKHWKHUZHKDYHDQDSSHDODEOHÀQDOGHFLVLRQPorter 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

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

12a

Appendix A

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.

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.

13a

Appendix A

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

´RIÀFLDOSROLF\µRUFXVWRPRIWKDWPXQLFLSDOLW\Monell v.

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

658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (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

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

14a

Appendix A

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,

182 W. Va. 454, 388 S.E.2d 480, 484 n.4 (W. Va. 1989)

(federal and state constitutional challenges); Jones v.

West Va. State Bd. of Educ., 218 W. Va. 52, 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, 121

S. Ct. 924, 148 L. Ed. 2d 807 (2001). The principals of

every public secondary school in West Virginia sit on the

Commission’s governing board. See W. Va. Code § 182-25(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 § 18-2-25(b). It is thus

unsurprising that “[e]very court that has considered the

question [of ] whether associations like the [Commission]

15a

Appendix A

are state actors” for 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

LWH[HUFLVHVVXIÀFLHQWFRQWURORYHUGLUHFWIXQGLQJUHFLSLHQWV

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

QR SRZHU WR WKH 1&$$ WR WDNH VSHFLÀF DFWLRQ DJDLQVW

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

16a

Appendix A

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 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 *ULIÀQY%U\DQW, 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 judg ment 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

17a

Appendix A

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

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, 56 S. Ct. 466, 80 L. Ed.

688 (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

DQRWKHUZLWKRXWVXIÀFLHQWMXVWLÀFDWLRQ6HHe.g., Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073,

/(GG )RUWKDWUHDVRQRXUÀUVWVWHS

is to identify the differential treatment that results from

the Act.

The Act’s substantive provisions make three relevant

FODVVLÀFDWLRQV$OOVSRUWVWHDPVPXVWEH´H[SUHVVO\

designated” as male, female, or co-ed. W. Va. Code § 18-2G F $SHUVRQ·VPDOHQHVVRUIHPDOHQHVVPXVWEH

18a

Appendix A

determined “based solely on the individual’s reproductive

ELRORJ\DQGJHQHWLFVDWELUWKµG E ´>6@

tudents of the male sex” are prohibited from joining

female teams but female students are not barred from

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

§ 18-2-25d(c)(3).

The defendants insist that the only relevant

FODVVLÀFDWLRQ KHUH LV WKH ÀUVW RQH DQG WKDW WKLV IDFW LV

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, 116

S. Ct. 2264, 135 L. Ed. 2d 735 (1996) (VMI). But, as the

defendants note, B.P.J. has disavowed 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.

19a

Appendix A

7KH ÀUVW UHDVRQ LV WKH $FW·V GLIIHULQJ WUHDWPHQW RI

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.

7KH$FWGHFODUHVDSHUVRQ·VVH[LVGHÀQHGRQO\E\WKHLU

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

(1). The undisputed purpose—and the only effect—of

WKDW GHÀQLWLRQ LV WR H[FOXGH WUDQVJHQGHU JLUOV IURP WKH

GHÀQLWLRQ RI ´IHPDOHµ DQG WKXV WR H[FOXGH WKHP IURP

participation on girls sports teams. That is a facial

FODVVLÀFDWLRQ EDVHG RQ JHQGHU LGHQWLW\ $QG XQGHU WKLV

&RXUW·V ELQGLQJ SUHFHGHQW VXFK FODVVLÀFDWLRQV WULJJHU

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

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

FODVVLÀFDWLRQLVVXSSRUWHGE\DJRRGHQRXJKUHDVRQJRHV

WRZKHWKHUWKDWFODVVLÀFDWLRQVDWLVÀHVWKHUHOHYDQWOHYHO

of constitutional scrutiny—not which level of scrutiny

DSSOLHVLQWKHÀUVWSODFH6HHe.g., Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 226-27, 115 S. Ct. 2097, 132

/ (G G UDFHEDVHG FODVVLÀFDWLRQV VMI,

86DW VH[EDVHGFODVVLÀFDWLRQV VMI provides

20a

Appendix A

a particularly telling example: Because the challenged

policy facially discriminated based on sex, the Court

DSSOLHGLQWHUPHGLDWHVFUXWLQ\ZLWKRXWÀUVWDVNLQJZKHWKHU

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

IURPFLVJHQGHUJLUOVZKLFKLV³OLWHUDOO\³WKHGHÀQLWLRQ

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

FODVVLÀFDWLRQµ $SSHOOHHV·%U IDLOV7KH$FWFRQWDLQV

a second layer of sex-based classification beyond its

required separation of teams into those for “boys” and

WKRVHIRU´JLUOVµ$VLWVÀQDOVXEVWDQWLYHSURYLVLRQUHYHDOV

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

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

21a

Appendix A

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

VH[EDVHGFODVVLÀFDWLRQµZHZRXOGKDYHWRFRQFOXGHWKLV

DGGLWLRQDOOHYHORIVH[GLVFULPLQDWLRQLVDOVRMXVWLÀHG

To sum up: The Act triggers intermediate scrutiny

IRU WKUHH UHDVRQV %HFDXVH LWV ÀUVW FODVVLÀFDWLRQ³LWV

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

FODVVLÀFDWLRQV³RQHEDVHGRQJHQGHULGHQWLW\DQGWKHRWKHU

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

she wants to do. For that reason, we must subject those

FODVVLÀFDWLRQVWRLQWHUPHGLDWHVFUXWLQ\DVZHOO

1. 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

WKHUHJXODWLRQVRLWLVWKH$FW·VFODVVLÀFDWLRQVWKDWPXVWVDWLVI\

constitutional scrutiny.

22a

Appendix A

Hav i ng det er m i ned the appropr iat e 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, 99 S. Ct.

23a

Appendix A

1760, 60 L. Ed. 2d 297 (1979), and Lehr v. Robertson, 463

U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983), for

example, the Court considered equal protection challenges

to statutes giving unwed fathers fewer rights 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, 105 S. Ct. 3249,

87 L. Ed. 2d 313 (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 as-applied claims,

WKH &RXUW VSHFLÀFDOO\ GHFOLQHG ´WR GHFLGH ZKHWKHU WKH

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” WKHVSHFLÀFJURXS

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

24a

Appendix A

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.

The defendants respond by quoting the Supreme

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

203 L. Ed. 2d 521 (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.

25a

Appendix A

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

W\SHRIFODVVLÀFDWLRQDWLVVXH86DW

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

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, 128 S. Ct.

1184, 170 L. Ed. 2d 151 (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, 102 S. Ct. 1051, 71 L. Ed. 2d 127 (1982), for example,

the Supreme Court rejected an as-applied challenge

to a provision of the tax code requiring employers to

26a

Appendix A

pay social security taxes. See id. at 254. Lee did not

examine the strength of the government’s interest in

DSSO\LQJWKDWUHTXLUHPHQWWRWKHVSHFLÀFSODLQWLIIEHIRUH

LW,QVWHDGWKH&RXUWH[SODLQHG´LWZRXOGEHGLIÀFXOWWR

accommodate the comprehensive social security system

ZLWK P\ULDG H[FHSWLRQV ÁRZLQJ IURP D ZLGH YDULHW\ RI

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 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.

'XULQJWKLVOLWLJDWLRQWKHGHIHQGDQWVKDYHLGHQWLÀHG

WZRJHQHUDOMXVWLÀFDWLRQVIRUH[FOXGLQJWUDQVJHQGHUJLUOV

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

27a

Appendix A

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 as-applied 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’

VXPPDU\MXGJPHQWPRWLRQZHPXVWDVVXPHDIDFWÀQGHU

would 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

KDYHDYRLGHGPDNLQJGLUHFWO\DQGVSHFLÀFDOO\GLVFODLPHG

at oral argument that nonetheless forms the basis for

28a

Appendix A

much of the dissenting opinion. The argument is one

YLDGHÀQLWLRQ,WVWDUWVE\SRVLWLQJWKDWJLUOV·VSRUWVDUH

H[FOXVLYHO\IRUWKHEHQHÀWRIFLVJHQGHUJLUOV DQGLWVHHPV

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

ÀQLVKLQJEHKLQG DWUDQVJHQGHUJLUO

That argument is deeply flawed. For one thing,

OLPLWLQJ WKH EHQHÀFLDULHV RI WKH 6WDWH·V ODUJHVVH ´EHJV

WKHTXHVWLRQµRIZKHWKHUWKHFKDOOHQJHGFODVVLÀFDWLRQLV

MXVWLÀHGLQWKHÀUVWSODFHMississippi Univ. for Women v.

Hogan, 458 U.S. 718, 731 n.17, 102 S. Ct. 3331, 73 L. Ed. 2d

$ 6WDWH·V GHFLVLRQ WR FUHDWH D FODVVLÀFDWLRQ

WKDWEHQHÀWVRQO\RQHFODVVDWWKHH[SHQVHRIRWKHUVPXVW

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

school’s track team. Based on her consistent times

WKURXJKRXWWKHVHDVRQVKHLVSURMHFWHGWRÀQLVKLQWK

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

29a

Appendix A

WUDFN$VDUHVXOWWKHÀUVWJLUOLVQRZSURMHFWHGWRÀQLVK

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

unconstitutional discrimination based on an asserted

LQWHUHVWLQSURWHFWLQJWKHÀUVWJLUO·VDQWLFLSDWHGWKSODFH

ÀQLVK"

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

DJUHHLQJWKDWWKHGULYHURIWKHPRVWVLJQLÀFDQWVH[EDVHG

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.

30a

Appendix A

Before puberty, circulating testosterone levels do

QRW YDU\ VLJQLÀFDQWO\ GHSHQGLQJ RQ ZKHWKHU D SHUVRQ

has two X chromosomes, one X and one Y chromosome,

or some other genetic makeup. Once puberty begins,

however, sex-based 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,

%3- LV UHFHLYLQJ JHQGHU DIÀUPLQJ KRUPRQH WKHUDS\

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

GREHQHÀWIURPLQFUHDVHGVWUHQJWKDQGVSHHGSURYLGHVQR

MXVWLÀFDWLRQ³PXFKOHVVDVXEVWDQWLDORQH³IRUH[FOXGLQJ

B.P.J. from the girls cross country and track teams.

7KDWOHDYHVRQHÀQDOTXHVWLRQIRUSXUSRVHVRI%3-·V

as-applied equal protection challenge: Even without

undergoing Tanner 2 stage puberty, do people whose sex

31a

Appendix A

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 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 ir. 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

32a

Appendix A

district court erred in granting summary judgment to the

defendants on B.P.J.’s equal protection claim. 2

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

OHYHOV DVVRFLDWHG ZLWK SXEHUW\ WKHUH DUH ´VLJQLÀFDQW

SK\VLRORJLFDO GLIIHUHQFHV DQG VLJQLÀFDQW PDOH DWKOHWLF

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.

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—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.

33a

Appendix A

:HFRQFOXGHQHLWKHUVWHSLVZDUUDQWHG)RUWKHÀUVW

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

D GLVSXWHG HYLGHQWLDU\ LVVXH LQ WKH ÀUVW LQVWDQFH 6HH

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

GHFOLQLQJWRGHFLGH´LQWKHÀUVWLQVWDQFHµDQLVVXHWKDW

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

DVVXPHDIDFWÀQGHUZRXOGFUHGLWWKHGHIHQGDQWV·HYLGHQFH

over B.P.J.’s. And although portions of B.P.J.’s briefs in

WKLV &RXUW DVVHUW WKDW HYHQ D VLJQLÀFDQW DGYDQWDJH LQ

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

34a

Appendix A

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

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

EHQHÀWVRIRUEHVXEMHFWHGWRGLVFULPLQDWLRQXQGHUDQ\

HGXFDWLRQSURJUDPRUDFWLYLW\UHFHLYLQJ)HGHUDOÀQDQFLDO

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

UHFHLYHIHGHUDOÀQDQFLDODVVLVWDQFHDQGZHKDYHDOUHDG\

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]

35a

Appendix A

H[FOXGHGIURPSDUWLFLSDWLRQLQµ´GHQLHGWKHEHQHÀWVRIµ

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, 129 S. Ct. 788, 172 L. Ed. 2d 582 (2009). For one

WKLQJQRWHYHU\DFWRIVH[EDVHGFODVVLÀFDWLRQLVHQRXJK

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 )G DW ÀUVW

alteration in original) (emphasis added) (quoting Bostock

v. Clayton Cnty., 140 S. Ct. 1731, 1740, 207 L. Ed. 2d

218 (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

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, 143 S. Ct.

2141, 216 L. Ed. 2d 857 (2023) (Gorsuch, J., concurring)

(noting that Title VI, whose language Title IX mirrors,

´GRHVQRWGLUHFWFRXUWVWRVXEMHFWWKHVHFODVVLÀFDWLRQVWR

one degree of scrutiny or another”).

36a

Appendix A

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 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

37a

Appendix A

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

DVDJLUOIRUPRUHWKDQÀYH\HDUV'XULQJWKDWWLPHKHU

elementary and middle schools created gender support

SODQV WR DIÀUP KHU JHQGHU LGHQWLW\ DQG HQVXUH VKH LV

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

DELUWKFHUWLÀFDWHWKDWUHFRJQL]HVKHUFKDQJHGQDPHDQG

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.

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

38a

Appendix A

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,

%3-ZRXOGEHVKDULQJWKHÀHOGZLWKER\VZKRDUHODUJHU

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

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

39a

Appendix A

§ 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,

DQGZRXOGFDXVHKHUVLJQLÀFDQWKDUP7KHUHJXODWLRQVWKH

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

$SU WREHFRGLÀHGDW&)5§ 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,

40a

Appendix A

deprive her of any meaningful athletic opportunities, and

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

***

:HGRQRWKROGWKDWJRYHUQPHQWRIÀFLDOVDUHIRUELGGHQ

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

VXPPDU\MXGJPHQWWR%3-RQKHUVSHFLÀF7LWOH,;FODLP

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

3. We decline to consider any argument that we should

DUWLÀFLDOO\ QDUURZ RXU LQWHUSUHWDWLRQ RI 7LWOH ,; EHFDXVH LW LV

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.

41a

Appendix A

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 § 18-2G´)HPDOHµLVGHÀQHGXQGHUWKH$FWDV´DQLQGLYLGXDO

42a

Appendix A

whose biological sex determined at birth is female” and

´PDOHµLVGHÀQHGDV´DQLQGLYLGXDOZKRVHELRORJLFDOVH[

determined at birth is male.” Id.

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

ZKR LGHQWLÀHV DV D JLUO³ZDV H[FOXGHG IURP WKH PLGGOH

VFKRRO JLUOV· WUDFNDQGÀHOG DQG FURVVFRXQWU\ WHDPV

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.

DW WKH SUHOLPLQDU\ LQMXQFWLRQ VWDJH ZLWK WKH EHQHÀW RI

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

WKHFODVVLÀFDWLRQLVVXEVWDQWLDOO\UHODWHGWRDQLPSRUWDQW

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

here, the government’s interest in “providing equal

DWKOHWLFRSSRUWXQLWLHVIRUIHPDOHVµVDWLVÀHGWKDWVWDQGDUG

Id. at 231.

43a

Appendix A

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.

WRSDUWLFLSDWHRQWKHPLGGOHVFKRRO·VJLUOV·WUDFNDQGÀHOG

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

LQ WKH WRS ÀIWHHQ SDUWLFLSDQWV DW WUDFNDQGÀHOG HYHQWV

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.

44a

Appendix A

II.

The majority holds that the Act may violate the Equal

Protection Clause and conclusively violates Title IX. I

disagree.1

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

KHLJKWHQHGVFUXWLQ\,WVDQDO\VLVLVÁDZHGIRUDWOHDVWWKUHH

reasons: the majority (1) without explanation, erroneously

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

1. I note at the outset that there are few cases involving

transgender discrimination and the cases that exist are limited to

WKHLUVSHFLÀFFRQWH[WV)RUH[DPSOHLQBostock 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, 140 S. Ct. 1731, 207

L. Ed. 2d 218 (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 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.

45a

Appendix A

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, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (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, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992) (stating

that the Equal Protection Clause prevents “governmental

decisionmakers from treating differently 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

VLJQLÀFDQWO\LPSDFWDWKOHWLFSHUIRUPDQFHSee 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

46a

Appendix A

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

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

increased circulating testosterone levels associated with

SXEHUW\WKHUHDUH¶VLJQLÀFDQWSK\VLRORJLFDOGLIIHUHQFHV

DQG VLJQLÀFDQW PDOH DWKOHWLF SHUIRUPDQFH DGYDQWDJHV

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

FRPSHWLWLYHDGYDQWDJHLQVSRUWVELRORJ\LVDVLJQLÀFDQWO\

47a

Appendix A

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

FRPHVWRFRPSHWLWLYHVSRUWV³WKDW%3-LGHQWLÀHVDVD

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, 121 S. Ct. 2053, 150 L. Ed. 2d 115 (2001) (“To fail to

acknowledge even our most basic biological differences . . .

ULVNVPDNLQJWKHJXDUDQWHHRIHTXDOSURWHFWLRQVXSHUÀFLDO

and so disserving it.”). 2

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.

48a

Appendix A

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.

LV VLPLODUO\ VLWXDWHG 7R ÀQG WKDW :HVW 9LUJLQLD GLVFULPLQDWHG

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

DQ HTXDO SURWHFWLRQ FODLP D SODLQWLII PXVW ÀUVW GHPRQVWUDWH

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

3URWHFWLRQ&ODXVHGRHVQRWIRUELGFODVVLÀFDWLRQV,WVLPSO\NHHSV

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, 116 S. Ct. 2264, 135 L. Ed. 2d

735 (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?” (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

49a

Appendix A

Second, the majority erroneously determines that

the Act facially treats transgender athletes differently

than their peers. To demonstrate that a statute makes

D FODVVLÀFDWLRQ RQ LWV IDFH WKH SODLQWLII PXVW VKRZ WKDW

it “explicitly distinguish[es] between individuals on

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

113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993); see, e.g., Reed v.

Reed, 404 U.S. 71, 73, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971)

LQYROYLQJDIDFLDOFODVVLÀFDWLRQZKHUHWKHVWDWXWHVWDWHG

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

VMI cadets” (citation omitted)). Therefore, Virginia simply does

not support the majority’s similarly situated analysis—or, more

accurately, its lack thereof.

3. 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.

50a

Appendix A

biological boys and biological girls differently, it does not

expressly treat transgender individuals differently.4

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 . . . SROLF\DWLVVXHFODVVLÀHV

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

discriminate on the basis of transgender status.”).

4. Given that the Act facially distinguishes between the sexes,

it is subject to heightened scrutiny for that reason. But no one

GLVSXWHVWKDW:HVW9LUJLQLDKDVVXIÀFLHQWO\LPSRUWDQWJRYHUQPHQW

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

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

VHSDUDWLRQLQVSRUWVµDQGPHUHO\FKDOOHQJHVWKH$FW·VGHÀQLWLRQ

of “sex.” Ante at 18 (cleaned up).

5. The Act is different from the restroom policy in Grimm—

ZKLFK WKH &RXUW IRXQG LQYROYHG D IDFLDO FODVVLÀFDWLRQ³EHFDXVH

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.

51a

Appendix A

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 discriminatory purpose.” Washington v. Davis,

426 U.S. 229, 241-42, 96 S. Ct. 2040, 48 L. Ed. 2d 597

(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

E\ UHFWLI\LQJ %3-·V IDLOXUH DQG ÀQGLQJ D WUDQVJHQGHU

FODVVLÀFDWLRQRQWKHIDFHRIWKH$FWZKHUHRQHGRHVQRW

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

6. Ostensibly recognizing that the Act does not make a facial

FODVVLÀFDWLRQWKHPDMRULW\SRVLWVWKDWWKH´XQGLVSXWHGSXUSRVHµRI

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

QRUHOHYDQFHLQDIDFLDOFODVVLÀFDWLRQDQDO\VLVSee Shaw, 509 U.S.

at 642 (“No inquiry into legislative purpose is necessary when the

UDFLDOFODVVLÀFDWLRQDSSHDUVRQWKHIDFHRIWKHVWDWXWHµ

52a

Appendix A

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

UHYLHZVVXFKDVWDWXWHZLWKKHLJKWHQHGVFUXWLQ\ÀQGLQJ

it unconstitutional “unless [it is] substantially related to

D VXIÀFLHQWO\ LPSRUWDQW JRYHUQPHQWDO LQWHUHVWµ Id. at

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

to survive such scrutiny, “the state must provide an

¶H[FHHGLQJO\SHUVXDVLYHMXVWLÀFDWLRQ·µIRUWKHGLVWLQFWLRQ

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

Everyone agrees that ensuring equal opportunities for

IHPDOHVLVDVXIÀFLHQWO\LPSRUWDQWJRYHUQPHQWLQWHUHVW

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

and other transgender girls who have not gone through

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

7. 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

ÀQGWKDWWKHQHJDWLYHVLGHHIIHFWVRISUHYHQWLQJWKHKXPDQERG\

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

DIWHUÀQGLQJDODFNRIHYLGHQFHWKDWWKH\DUHVDIHRUHIIHFWLYH

$QGVLQFH%3-·VSXEHUW\VWDWXVFDQEHVRHDVLO\PRGLÀHG

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

53a

Appendix A

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’

WUDFNDQGÀHOGWHDPLVDTXLQWHVVHQWLDOH[DPSOHRIZK\

transgender girls participating in biological girls’ sports

interferes with West Virginia’s well-founded interest.

B.P.J.’s participation did exactly 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

WRS ÀIWHHQ³DQG RIWHQ LQ WKH WRS WHQ³FRPSHWLWRUV DW

events, B.P.J. displaced at least one hundred biological

JLUOVDWWUDFNDQGÀHOGHYHQWVDQGSXVKHGPXOWLSOHJLUOV

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

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.

54a

Appendix A

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

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

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 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.”).

55a

Appendix A

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

RYHU\HDUVDUHPDUNDEOHÀQG

Undeterred, the majority compounds its f lawed

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

WKHEHQHÀWVRIRUEHVXEMHFWHGWRGLVFULPLQDWLRQXQGHU

any education program or activity receiving Federal

ÀQDQFLDO DVVLVWDQFHµ 86& § 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

DFWLYLW\GHQLHGWKHEHQHÀWVRIWKLVHGXFDWLRQRURWKHUZLVH

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.

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

2022) (en banc).

%3-·V7LWOH,;FODLPIDLOVRQWKHÀUVWSURQJ8QGHU

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

56a

Appendix A

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

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

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

DV D JLUO LV VXIÀFLHQW WR SHUPLW D ÀQGLQJ WKDW %3- LV

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

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SURWHFWLRQDQDO\VLVLWWKHQPRYHVRQWRWKHMXVWLÀFDWLRQ

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

discrimination under Title IX, the inquiry ends. It does

not matter that the state has an exceedingly persuasive

MXVWLÀFDWLRQIRULWVDFWLRQV

57a

Appendix A

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

SXEHUW\DQGLWLVHYHQFOHDUHUWKDWWKH\KDYHDVLJQLÀFDQW

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)).

,W ´SDYHG WKH ZD\ IRU VLJQLÀFDQW LQFUHDVHV LQ DWKOHWLF

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

DFFHVVE\HYHQLQJWKHSOD\LQJÀHOG

58a

Appendix A

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

biological sexes in the female athletics

This text is long and has been trimmed here. Open the source document for the complete record.

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