Court Protects Women’s Sports in West VA

Jan 6, 2023

A federal judge ruled that a West Virginia law that prevents biological boys from competing in female school sports is constitutional and can remain in place. 

In B.P.J. v. West Virginia State Board of Education, federal district Judge Joseph R. Goodwin ruled that B.P.J., a boy who wants to identify as a girl, does not have a right under the Equal Protection Clause or Title IX to participate on the girls’ cross-country and track teams at his middle school. 

The American Civil Liberties Union and its West Virginia chapter filed the lawsuit in 2021 on behalf of the 11-year-old biological boy who wanted to compete in middle school cross-country in Harrison County.

HB 3293, known as the “Save Women’s Sports Bill,” was introduced in the West Virginia House of Delegates on March 18, 2021. The bill passed and was codified as West Virginia Code Section 18-2-25d, entitled “Clarifying participation for sports events to be based on biological sex of the athlete at birth.” The bill was signed by Governor Jim Justice. 

In his opinion, Judge Goodwin said that “a transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males. And biological males generally outperform females athletically…The state is permitted to legislate sports rules on this basis because sex, and the physical characteristics that flow from it, are substantially related to athletic performance and fairness in sports.” 

“The legislature's definition of ‘girl’ as being based on ‘biological sex’ is substantially related to the important government interest of providing equal athletic opportunities for females,” the court wrote.

In July 2021, Judge Goodwin previously had a reverse opinion and granted a preliminary injunction that required school officials to allow B.P.J. to try out for the girls’ teams. In granting that preliminary injunction, Goodwin ruled that B.P.J. was likely to succeed on his Equal Protection and Title IX claims. 

However, yesterday Judge Goodwin concluded his opinion by stating, “I have no doubt that H.B. 3293 aimed to politicize participation in school athletics for transgender students. Nevertheless, there is not a sufficient record of legislative animus. Considering the law under the intermediate scrutiny standard, I find that it is substantially related to an important government interest.” 

Liberty Counsel’s Founder and Chairman Mat Staver said, “We commend Judge Goodwin for protecting girls’ and women’s opportunities to excel in sports. Female athletes train hard to compete and should not lose titles, records, and scholarships that are rightfully theirs and even incur serious sports-related injuries by competing against males.” 

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