B. P. J. v. W. Va. State Bd. of Educ.

• Decision Date: 21 July 2021
• Docket Number: CIVIL ACTION NO. 2:21-cv-00316
• Parties: B. P. J., et al., Plaintiffs, v. WEST VIRGINIA STATE BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

550 F.Supp.3d 347

B. P. J., et al., Plaintiffs,

v.WEST VIRGINIA STATE BOARD OF EDUCATION, et al., Defendants.

CIVIL ACTION NO. 2:21-cv-00316

United States District Court, S.D. West Virginia, Charleston Division.

Signed July 21, 2021

Andrew D. Barr, Pro Hac Vice, Cooley, Denver, CO, Avatara Antoinette Smith-Carrington, Lambda Legal Defense and Education Fund, Dallas, TX, Carl Solomon Charles, Pro Hac Vice, Lambda Legal, Atlanta, GA, Elizabeth Reinhardt, Pro Hac Vice, Cooley, Boston, MA, Joshua A. Block, Pro Hac Vice, American Civil Liberties Union, Katelyn Kang, Pro Hac Vice, Cooley, Sruti J. Swaminathan, Pro Hac Vice, Lambda Legal Defense and Education Fund, New York, NY, Julie Veroff, Pro Hac Vice, Kathleen R. Hartnett, Pro Hac Vice, Cooley, San Francisco, CA, Loree Beth Stark, American Civil Liberties Union of West Virginia, Charleston, WV, Tara L. Borelli, Lamda Legal, Decatur, GA, for Plaintiffs.

Kelly C. Morgan, Kristen Vickers Hammond, Michael W. Taylor, Bailey & Wyant, Charleston, WV, for Defendants West Virginia State Board of Education, W. Clayton Burch.

Susan L. Deniker, Steptoe & Johnson, Bridgeport, WV, for Defendants Harrison County Board of Education, Dora Stutler.

Anthony E. Nortz, Kimberly M. Bandy, Roberta F. Green, Shuman McCuskey & Slicer, Charleston, WV, for Defendant West Virginia Secondary School Activities Commission.

MEMORANDUM OPINION & ORDER

JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE

A fear of the unknown and discomfort with the unfamiliar have motivated many of the most malignant harms committed by our country's governments on their own citizens. Out of fear of those less like them, the powerful have made laws that restricted who could attend what schools, who could work certain jobs, who could marry whom, and even how people can practice their religions. Recognizing that classifying human beings in ways that officially sanction harm is antithetical to democracy, the states ratified the Fourteenth Amendment. It ensures that no state may "deny to any person within its jurisdiction the equal protection of the laws." Accordingly, the courts are most juberous of any law—state or federal—that treats groups of people differently.

The matter before me today is a motion to preliminarily enjoin a recently passed state law. Those standing in opposition to this law assert that it was enacted to incite fear and exclude certain persons rather than to address a legitimate government interest. At this point, I have been provided with scant evidence that this law addresses any problem at all, let alone an important problem. When the government distinguishes between different groups of people, those distinctions must be supported by compelling reasons. Having determined that Plaintiff has a likelihood of success in demonstrating that this statute is unconstitutional as it applies to her and that it violates Title IX, Plaintiff's Motion for a Preliminary Injunction is GRANTED .

I. Plaintiff and Her Claims

B.P.J. is an eleven-year-old girl preparing to begin the sixth grade at a new school. Like many of her peers, B.P.J. intends to participate in school athletics. She hopes to join both the girls' cross country and track teams. However, B.P.J. was informed by her school that because of a new statute, she will no longer be permitted to join either team because she is a transgender girl.

For a definition of terms such as gender identity,¹ gender dysphoria

,² cisgender,³ etc., I refer to the meticulously researched and written opinion in Grimm v. Gloucester County School Board , 972 F.3d 586, 594–597 (4th Cir. 2020). I adopt the definition of transgender used in that opinion. " ‘Transgender’ is ... ‘used as an umbrella term to describe groups of people who transcend conventional expectations of gender identity or expression.’ " Grimm , 972 F.3d at 596 (quoting PFLAG, PFLAG National Glossary of Terms (July 2019), http://pflag.org/glossary).

B.P.J. writes in depth about her history—revealing publicly what are inherently private details—to educate both the court and public. B.P.J. is a transgender girl who, while assigned the sex of male at birth, knew from a young age that she is a girl. [ECF No. 64, ¶ 31]. By the third grade, B.P.J. was living as a girl at home but dressing as a boy at school. Id. B.P.J. then asked to change her name to a name commonly associated with girls and began living as a girl in both public and private. Id. B.P.J. also joined her elementary school's all-girl cheerleading team. Id. at ¶ 36. B.P.J. practiced and competed with this team without incident.

B.P.J. was diagnosed with gender dysphoria

in 2019. Id. at ¶ 33. She began puberty-delaying treatment on June 15, 2020, to treat that condition.⁴ Plaintiff avers that this treatment, which prevents endogenous puberty and therefore any physiological changes caused by increased testosterone circulation, prevents her from developing any physiological advantage over other girl athletes.⁵

B.P.J., through her mother, filed this lawsuit against the West Virginia State Board of Education, the Harrison County Board of Education, the West Virginia Secondary Schools Activities Commission ("WVSSAC"), State Superintendent W. Clayton Burch, and Harrison County Superintendent Dora Stutler. The State of West Virginia moved to intervene, and that motion was granted. Plaintiff then amended her complaint, [ECF No. 64], naming both the State and Attorney General Patrick Morrisey as defendants.

In her complaint, B.P.J. alleges that Defendants Burch, Stutler, the WVSSAC, and Attorney General Morrisey deprived her of the equal protection guaranteed to her by the Fourteenth Amendment and that the State, the State Board of Education, the Harrison County Board of Education, and the WVSSAC have violated Title IX. [ECF No. 64, at 20–23]. B.P.J. seeks a declaratory judgment that Section 18-2-25d of the West Virginia Code violates Title IX and the Equal Protection Clause; an injunction preventing Defendants from enforcing the law against her; a waiver of the requirement of a surety bond for preliminary injunctive relief; nominal damages; and reasonable attorneys' fees.

The motion for a preliminary injunction that accompanies her complaint seeks relief only insofar as this law applies to her. That is, granting this motion will only prevent the State and other Defendants from enforcing Section 18-2-25d against B.P.J. Whether the law is facially unconstitutional is an issue raised in the Complaint and will be resolved at a later stage of litigation.

II. The Law

On March 18, 2021, ten delegates in the West Virginia House of Delegates introduced House Bill 3293, strategically referred to as the "Save Women's Sports Bill." West Virginia Governor Jim Justice signed the bill into law on April 28, 2021, and it 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 statute begins by noting that "[t]here are inherent differences between biological males and biological females, and that these differences are cause for celebration, as determined by the Supreme Court of the United States in United States v. Virginia (1996)." § 18-2-25d(a)(1). The statute then provides a series of definitions, all at issue here:

(1) "Biological sex" means an individual's physical form as a male or female based solely on the individual's reproductive biology and genetics at birth.

(2) "Female" means an individual whose biological sex determined at birth is female. As used in this section, "women" or "girls" refers to biological females.

(3) "Male" means an individual whose biological sex determined at birth is male. As used in this section, "men" or "boys" refers to biological males.

§ 18-2-25d(b)(1)–(3).

Using these definitions, the gravamen of the statute requires that "[i]nterscholastic, 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 one of the following based on biological sex: (A) Males, men, or boys; (B) Females, women, or girls; or (C) Coed or mixed." § 18-2-25d(c)(1). Once those teams are properly designated, the statute goes on to address who may participate on which teams. "Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport." § 18-2-25d(c)(1).

According to the statute's text, its definition of "biological sex" has nothing to do with gender identity. "Gender identity is separate and distinct from biological sex to the extent that an individual's biological sex is not determinative or indicative of the individual's gender identity. Classifications based on gender identity serve no legitimate relationship to the State of West Virginia's interest in promoting equal athletic opportunities for the female sex." § 18-2-25d(a)(4).

The State asserts that the objective of the statute is to provide equal athletic opportunities for female athletes and to protect the physical safety of female athletes when competing. [ECF No. 49, at 7]. Plaintiff argues that the State's assertion is a façade concealing the true objective: to exclude transgender girls and women from participating in sports.

III. The Preliminary Injunction

The United States Supreme Court and the United States Court of Appeals for the Fourth Circuit have provided district courts with a precise analytical framework for determining whether to grant preliminary injunctive relief. First, B.P.J. must make a clear showing that she will likely succeed on the merits. Second, she must make a clear showing that she is likely to be irreparably harmed absent preliminary relief. Third, she must show that the balance of equities tips in her favor. Finally, B.P.J. must show that an injunction is in the public interest. All four requirements must be...