A federal appeals court in Richmond will decide whether a West Virginia law that blocks transgender girls from participating in middle and high school female sports violates the U.S. Constitution. Carve outs for gender separation in school activities exist in federal law, but questions remain how those with differing gender identities may or may not be excluded.
The 4th Circuit Court of Appeals decided transgender students have the right to use the bathroom aligned with their gender identity, but lawyers for the State of West Virginia argued Friday morning that the same precedent shouldn’t apply specifically to transgender girls who wish to participate in female sports teams.
“Sports are a unique and strong case with differences rooted in biology that offer sex-based distinctions on the playing field,” argued West Virginia Solicitor General Lindsay Sara See, on behalf of the state and several other parties who wish to see the law upheld.
Passed in 2021, the state law forbids only transgender girls from participating in female sports teams from middle to high school levels. The state has argued transgender females would have an inherent, biological advantage which would rob players assigned female at birth an equal playing field.
“While gender identity may not be a choice, so is biology,” See said, quoting the lower court ruling which denied an unnamed 12-year-old transgender female student’s request to block the law. “There are biology-based distinctions relevant to athletics.”
But American Civil Liberties Union lawyer Joshua Block argued on the girl's behalf that she’d gone through medical treatments early in life which render concerns about physiological differences moot. Instead, Block said, the law paints with too broad a brush, banning all transgender girls, even those who wouldn’t have a physical advantage.
Federal law, Title IX of the of the Education Amendments of 1972, allows for sex discrimination in some school activities, including sports. And See noted those protections for female athletes were rooted in an effort to protect them as a class which was historically disadvantaged.
Block was the lawyer who successfully argued the now famous Gavin Grimm case which found forcing transgender students to use the bathroom aligned with their birth gender, in line with Title IX's sex discrimination carveouts, was constitutionally unsound.
In that dispute, he convinced the court the governmental interest in the bathroom law wasn’t sufficient to cause the humiliation Grimm or other transgender students would face by being forced into their birth-gender or otherwise segregated restrooms. And Friday morning he suggested the unnamed plaintiff in the West Virginia dispute would face similar humiliation if forced to participate in their birth-gender sport.
“The constitution allows separate teams, not unequal ones,” he said. “When defendant’s say a transgender girl can simply go to a boy's team, it fails to grapple with what it means to be transgender.”
Notably the position of the case also raised some eyebrows among the judges. Both Circuit Judges Pamela Harris, a Barack Obama appointee, and Toby J. Heytens, a Joe Biden appointee (and former Solicitor General for Virginia under former AG Mark Herring) asked why the court was hearing the dispute when the lower court had failed to fully review all of the evidence in the case.
“It’s an unusual combination of orders from the District Court,” said Harris, pointing to the record where the judge appears to acknowledge there’s no competitive advantage for the transgender plaintiff, while also acknowledging additional disputes over evidence were not resolved.
“I don’t see any fact finding in the order which says girls like BPJ have or doesn’t not have a competitive advantage,” the judge added.
But See said the record would show there were biological differences that provided an advantage.
“In a situation where facts or inches make a difference, so do these biological differences,” See said.
But Block said the evidence would show otherwise: “The very minimal differences pointed to by the other side cannot sustain this categorical ban.”
The odd posture of the case could see the judges return the fight to lower court where evidentiary disputes would need to be resolved.
Circuit Judge Steven Agee, a George W. Bush appointee, rounded out Friday’s panel. The judges did not signal when they might rule on the case.
This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.
