US Appeals Court revives trans girl’s challenge to statutory exclusion from girls’ sports teams

A pedestrian passes by the US 4th Circuit Court of Appeals Courthouse on Main Street in Richmond, Va., Wednesday, June 16, 2021.
A pedestrian passes by the US 4th Circuit Court of Appeals Courthouse on Main Street in Richmond, Va., Wednesday, June 16, 2021.
AP Photo/Steve Helber, File

Becky Jackson, a transgender eighth grader, has identified as a girl since the third grade, and participated as a girl in elementary and middle school sports events. At the time, West Virginia’s Secondary School Activities Commission had a policy “allowing transgender students to join teams matching their gender identity if their school determined that ‘fair competition’ would not be impacted by the student’s participation,” according to the opinion released on April 16 by the Richmond-based U.S. Court of Appeals for the Fourth Circuit in Becky’s case. But West Virginia’s legislature, responding to conservative political agitation, passed a new law, titled the “Save Women’s Sports Act,” effectively providing that boys’ teams were open to anybody of either sex, but girls’ teams were only open to people identified as girls at birth.

When Becky was told she would no longer be allowed to try out for the girls’ track team as she entered high school, she filed a lawsuit claiming that the law as applied to her violated her rights under the Equal Protection Clause of the 14th Amendment of the US Constitution and Title IX of the federal Education Amendments of 1972. Becky’s mother, Heather Jackson, filed suit on her behalf. In litigation papers, Becky is referred to by her initials BPJ, as is customary with minors as plaintiffs.

The Equal Protection Clause has been interpreted by the Supreme Court to ban unjustified discrimination by state actors because of sex, and Title IX provides that people cannot, “on the basis of sex,” be denied equal participation in activities offered by educational institutions that receive federal funding. A regulation under Title IX provides that educational institutions can have separate sports activities for boys and girls, which Becky does not challenge. Rather, she claims she should be allowed to participate as a girl on the girls’ track team.

Under the reasoning of the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, many federal courts have ruled that both the Equal Protection Clause and Title IX apply to claims of discrimination because of transgender status. Under Equal Protection, most courts have stated that a policy that discrimination because of transgender status is constitutionally suspect unless the state can show that it substantially advances an important state interest, and many courts have found that excluding transgender students from restrooms or sports activities violates Title IX. But the trial judge in this case, Joseph R. Goodwin, rejected Becky’s arguments, granting summary judgment to the defendants, which include the West Virginia State Board of Education, the Harrison County Board of Education, the Secondary Schools Activity Commission, the State Superintendent of Education, and the Harrison County Superintendent. After Becky filed suit, represented by the ACLU, the state of West Virginia intervened as a defendant as well, and numerous “amicus” parts filed briefs as Becky appealed to the Fourth Circuit.

Judge Goodwin denied Becky’s motion for summary judgment on the case, even though the Fourth Circuit’s past rulings appeared to be in Becky’s favor, as that court ruled several years ago that Gavin Grimm, a transgender boy who was excluded from using boys’ restroom facilities at a Virginia high school, had a good legal claim under both Equal Protection and Title IX. The majority of the Fourth Circuit panel, faithful to the Grimm precedent, ruled on her appeal that Becky could contest the application of the state exclusionary rule to her under both legal theories. Circuit Judge Toby J. Heytens, an appointee of President Joe Biden, wrote the opinion for the majority of the panel, joined by Circuit Judge Pamela Harris, an appointee of President Barack Obama. G. Steven Agee, an appointee of President George W. Bush, dissented.

First taking up the constitutional claim, Judge Heytens found that it would have been inappropriate for Judge Goodwin to grant summary judgment to either party, because there are contested issues of material fact in the case. A material fact is one that is directly relevant to deciding the case. Summary judgment is reserved for cases where the material facts are undisputed, and the court can decide who should win as a matter of law based on the undisputed facts.

The key dispute under the constitutional claim was over whether the state’s rule advances a substantial state interest. The argument that letting transgender girls compete in girls sports would seriously diminish chances for cisgender girls to compete was nonsense, of course, since the number of transgender girls in the state of West Virginia seeking to compete in sports as girls is, at present, only one: Becky. The state also argues that the purpose of allowing separate boys and girls teams under Title IX was to advance safety and promote fair competition. But track is not a contact sport, so safety is not a particular issue in Becky’s case, and everything boils down to fairness.

Becky’s lawyers presented statements by experts who contended that the course of treatment Becky went through to transition had eliminated any significant advantage that she might have accrued had she experienced male puberty, when the release of hormones results in distinguishing the physical abilities of males and females. They contended it would not be unfair for Becky to compete with cisgender girls — those identified as female at birth. Lawyers for the defendants presented statements by experts contending the opposite, that being identified as male at birth conferred genetic advantages that were not eliminated by medical transition. Each side challenged the admissibility of the other side’s expert testimony, but Judge Goodwin did not make a ruling on admissibility, instead accepting the state’s contention that Becky’s exclusion was justified by a concern for fairness.

Judge Heytens found that the case turned on the competitive advantage issue, and that it was necessary for the trial court first to apply the rules governing admission of expert testimony to rule on the parties’ motions to exclude their opponent’s expert testimony, and then to let the case proceed to a hearing at which a jury can decide whether the state has shown a substantial justification for its policy.

Turning to Title IX, Judge Heytens wrote that the policy adopted by the state, as applied to Becky, violated the clear language of the statute. “Under Title IX,” wrote the judge, invoking the Fourth Circuit’s Grimm decision, “discrimination ‘means treating an individual worse than others who are similarly situated,’” and “once a Title IX plaintiff shows she had 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.”

The panel majority found that Becky’s case met these requirements. “First,” wrote Heytens, “that 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, and this Act discriminates based on gender identity” by singling out transgender girls for exclusionary treatment. “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. 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 BPJ. may not play on girls’ teams.”

The court also found objectionable that the Act requires treating students differently “even when they are similarly situated,” wrote Heytens. Only one category of transgender students — transgender girls — are forbidden from participating in sports teams “corresponding with their gender.” This is regardless of whether any given girl posses any inherent athletic advantages based on being transgender.

The court found that not only does the Act harm Becky by excluding her from participating as a girl in track competition, it undermines her gender transition by providing that if she wants to participate she must do so on a boys’ team. This, observed the court, creates the danger and unfairness that the legislature claimed to be concerned about. Because of her medical transition, Becky could be endangered by competing with boys who are on average bigger and stronger than she is and would certainly be placed at a severe competitive disadvantage.

“Offering BPJ a ‘choice’ between not participating in sports and participating only on boys’ teams is no real choice at all,” said the court. “The defendants cannot expect that BPJ will countermand her social transition, her medical treatment, and all the work she has done with her schools, teachers, and coaches for nearly half her life by introducing herself to teammates, coaches, and even opponents as a boy. The defendants do not dispute that doing so would directly contradict the treatment protocols for gender dysphoria.”

The court rejected the defendants’ argument that the legislators’ “expected applications” of Title IX should dictate the result, pointing out that that the Supreme Court specifically rejected this argument in the Bostock case.

The court decided that Judge Goodwin should have granted summary judgment to Becky Jackson on her Title IX claim and sent the case back to the trial court with instructions to enter summary judgment for her on the Title IX claim and for “further proceedings (including remedial proceedings) consistent with this opinion.”

The defendants can seek review of this decision by the full 14th Circuit bench, which has 15 active judges, nine appointed by Democratic presidents and six by Republican presidents. More likely, they could seek review directly from the Supreme Court, where the political balance is six to three in favor of the Republican appointees. In light of the intense interest about this case signaled by the huge volume of amicus briefs filed on both sides, some sort of further appeal seems highly likely. The practical question now is whether Becky Jackson will have a final decision in her case before she graduates from high school.