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[UPDATE] A county judge has granted a preliminary injunction to four middle school girls and their parents barring the school district from punishing them for their protest of males competing in girls’ sports.
Harrison County Judge Thomas Bedell granted the injunction in response to a lawsuit filed by the parents of the girls. His decision allows the track athletes to compete in the two meets left in the season, even as the lawsuit continues through the judicial process.
Bedell ruled that the “public interest always preponderates toward freedom of speech.”
Five girls who had entered in the shot-put event at the Harrison County Middle School Championships on April 18 had protested a decision announced two days prior by the U.S. Court of Appeals for the Fourth Circuit stopping West Virginia from enforcing the “Save Women’s Sports Act,” its ban on male athletes competing in women’s sports. As a result of the ruling, the transgender who brought the lawsuit against the state law, a 13-year-old boy who goes by the name of Becky Pepper-Jackson, was given the go-ahead to compete against these five girls in the shot put event.
The girls protested silently by refusing to participate. They made their objection known by each stepping into the circle when it was their turn to throw, putting the ball to their neck, and then stepping out and handing the shot put to the judge.
As we reported on Friday, the parents of four of the girls filed a lawsuit on April 26, shortly after the parents were informed by the school that the girls would not be allowed to compete in future track meets. The suit claims the athletes were punished for their silent protest and that the district’s actions violated the First Amendment, the West Virginia Constitution, and codes and regulations governing how West Virginia handles student-athlete protests.
In an emergency hearing before the judge, several parties to the lawsuit testified. Dawn Reistenberg, head coach of the middle school girls’ track team, and Lincoln Middle School principal Lori Scott told the court that the girls were not suspended because of the protest but because of a four-year-old unwritten rule that says any athlete who “scratches” from an event is not allowed to compete in that same event in the following meet.
They further claimed that the girls were allowed to compete in other events in the ensuing meet and in any events in the following meets.
Riestenberg, Scott, and a student testified that the girls had worn shirts stating “SWS” (for “Save Women’s Sports”) at meets and were not punished and that school officials became aware of the girls’ plan to protest at the meet and allowed them to enter anyway. They claim the students were only suspended due to the need to not show favoritism in applying the scratch rule.
Caleb David, the attorney for the plaintiffs, argued that because the rule was unwritten there was no official or unofficial process to question or appeal any decision related to that rule.
Two of the girls also testified and said they didn’t know anything about the “scratch rule.” They also said that all five girls had been punished for refusing to compete by Coach Reistenberg, who forced them to do grueling “Indian Runs” the week after the event.
Bedell agreed that the school’s actions denied the girls and their parents any avenue for due process or appeal, although he found “there was no malice” by the defendants. He also stated that the scratch rule needed to be in writing, to which the district has since agreed.
The judge’s decision reinstating the girls did not touch on the issue of men in women’s sports, only the questions of free speech and due process.
The district issued a statement after the ruling, saying, “The Harrison County Board of Education strongly denies any form of retaliation against the Lincoln Middle School students who voluntarily chose to scratch from an event at the Harrison County Middle School Championship Track Meet. The students were permitted to engage in their selected form of protest without issue. In fact, the coaches and principal were aware of the likelihood of the protests and permitted the students to remain on the roster for their events.”
The statement continued, “Those students, like all of the other students on the team, however, were subject to a team rule that any player who scratches in an event cannot participate in that event at the next track meet. This neutral, school-specific rule was in place before the students’ protests and has nothing to do with those protests in any way. Other than not being permitted to participate in the same event in which they scratched at the next track meet, the students have competed in track meets and events following their protests without restriction.”
The judge’s decision wasn’t a total win, though, as the girls will likely still have to compete against Pepper-Jackson in the two remaining events.
All of this debate may be made moot by the recently announced overhaul of Title IX, the Civil Rights law that protects women and girls against discrimination at school and provides equal opportunity in sports and other activities. The new Final Rule redefines biological sex to include gender identity and sexual orientation and is scheduled to take effect on August 1, 2024. Several lawsuits asking for courts to block it as illegal and unconstitutional are underway.
West Virginia is one of 24 states that have passed laws barring males from competing in women’s sports. Some courts have allowed the laws to stand, while others have blocked them.
Even more fuel was added to the debate over the fairness of allowing transgenders into women’s competition over the weekend, when a male who identifies as female captured two NCAA women’s track events. In both events, the 200 and 400 meter races, his times broke the women’s school record, but if he’d run those same times in the corresponding men’s events, he would have finished last.
{Published April 17, 2024} The U.S. Court of Appeals for the Fourth Circuit has placed an injunction on a West Virginia law that prohibits male students from competing in women’s sports, saying that it discriminates against transgender students.
West Virginia’s “Save Women’s Sports Act” notes that there are differences between the biological sexes and that males would displace females to a substantial extent if allowed to compete on teams designated for girls.
The law decreed that male students could not participate in sports designated for females.
A middle school athlete (B.P.J.), who is male but identifies as female, and his family filed suit challenging the law.
On Tuesday, in a 2-1 decision, a panel for the Fourth Circuit overturned a lower court ruling in the state’s favor and granted summary judgment to the transgender student.
The decision, authored by Judge Toby Heytens, claims that the law discriminates between “cisgender girls and transgender girls” and thus violates the Equal Protection Clause of the 14th Amendment. “Transgender girls” are males who identify as female.
Heytens claimed, “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. The Act declares a person’s sex is defined only by their ‘reproductive biology and genetics at birth.’ The undisputed purpose—and the only effect—of that definition is to exclude transgender girls from the definition of ‘female’ and thus to exclude them from participation on girls sports teams.”
The court argues that the law discriminates based on gender identity.
The court also claims that B.P.J. presented evidence that he has no biological advantage over females in sports because he began taking puberty blockers in third grade before going through puberty. The court chose to take into account evidence provided in favor of B.P.J.’s argument but seemed to set aside evidence presented that shows males do possess a biological advantage even without going through male puberty.
The court also chose to apply equal protection claims to Title IX, which requires separate sports for women and men in institutions that receive federal funding, despite the Supreme Court’s ruling in Bostock v. Clayton County, which explicitly stated that while gender identity is a protected employment class under Title VII, the ruling did not extend to Title IX’s requirements for equal athletic or other educational opportunities for the sexes.
The judges also determined that boys who identify as girls before going through puberty are “similarly situated” to biological girls. The majority wrote,
“We do not hold that government officials are forbidden 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 and in this particular case and in failing to grant summary judgment to B.P.J on her specific Title IX claim.”
Issuing a visceral dissent was Judge G. Steven Agee, who noted that B.P.J. had dominated girls’ track, consistently placing among the highest ranks, “displaced at least one hundred biological girls,” and also “by making two conference championships…took away at least two biological girls’ opportunities to participate in conference championships.”
Agee elaborated,
“Thanks to the newfound rubric of today’s majority opinion, such displacement will become commonplace. By continuing to allow B.P.J.—and transgender girls 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.”
He wrapped up his dissent with a warning regarding courts’ recent decisions to expand the Equal Protection Clause:
“Ignoring what would seem to be clear law, the majority ensures that policy preferences prioritizing transgender persons take precedence. But where will this Court, or any court, draw the line? Bostock allegedly drew the line at employment decisions under Title VII. Grimm was specific to bathrooms. Yet, here we are again, miles away from the straightforward text of the laws we are called to apply, judicially rewriting the Equal Protection Clause and nullifying Title IX’s promise of equal athletic opportunity for women.
And if the commonly understood and accepted limits on restroom usage and sports teams are negated by judicial fiat, I fail to see where the Court will ever impose a limit. No unelected judge is empowered to decide that the Equal Protection Clause and Title IX require schools to allow transgender individuals to share locker rooms and showers with the sex identify with, anatomy notwithstanding. Yet that seems to be the next stop on this runaway train. Neither the drafters of the Equal Protection Clause nor Congress when enacting Title IX intended such a result.“
The majority’s ruling is built on false premises. It treats biological girls and biological males who identify as girls exactly the same, seeing “transgender females” as simply another type of female. It also erroneously opts for the view that athletic performance differences between male and female can all be chalked up to testosterone circulation. Additionally, it errs in applying the Supreme Court’s decision in Bostock to other areas, including women’s sports at the K-12 and college levels, a category that is governed by Title IX and which explicitly orders sex-separate leagues and opportunities.
Time and again, women and girls have been forced to choose between quitting athletic competition and losing or between changing in front of a male and hiding in a broom closet.
Sports categories exist for a reason, and that reason is that there are differences between athletes. Males, with greater lung capacity, stronger bones, greater upper body strength, smaller hips, and other innate biological advantages, should not be allowed to compete against females.
And whether male or female, no person should be allowed to force others of the opposite sex to forfeit their right to change in sex-segregated locker rooms.
This decision is wrong in every possible way and must be overturned. Fortunately, West Virginia’s Attorney General indicated that the state would appeal the decision, saying, “I will keep fighting to safeguard Title IX. We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field. We know the law is correct and will use every available tool to defend it.”
As seen in this article, many K-12 schools now embrace the secular woke agenda and are hostile to Christian beliefs and parental rights. Fortunately, parents don’t have to settle for this. Liberty University Online Academy is a K-12 program designed to educate your children in the ways of the Lord while preparing them to stand firm in their faith when they graduate. Our flexible online curriculum ensures that your student is trained at your convenience and keeps YOU the ultimate educator of your children.
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