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[UPDATE] Five West Virginia middle school girls who protested the inclusion of a male athlete in a girls’ sports competition by refusing to compete have been suspended from the team and barred from future competitions, according to a new lawsuit.
The protest came two days after the Fourth Circuit U.S. Court of Appeals blocked the enforcement of West Virginia’s Save Women’s Sports Act, which bans biological males from competing in sports competitions reserved for females. That ruling allowed a 13-year-old male who identifies as a girl to compete in the Harrison County Middle School Championships track and field meet on April 18.
As an act of civil disobedience and protest over having to compete against a boy, the five girls, who were entered in the shot put event, forfeited the competition by stepping into the circle, refusing to throw, and then handing the shot put to the judge.
The transgender athlete later finished first in that event and came in second in the discus event.
The parents of four of the girls filed a lawsuit on April 26 after all five girls were suspended from the team and told they would not be allowed to compete in future events.
The lawsuit claims that in the week following the protest, head coach Dawn Riestenberg forced the athletes involved in the protest to do “Indian sprints,” a grueling exercise in which runners run in a single line and then each runner at the back must sprint to the front of the line.
On April 24, the girls attended a press conference discussing their reasons for protesting. Other participants that day included Riley Gaines, former University of Kentucky swimmer turned advocate for fairness in women’s sports; West Virginia Attorney General Patrick Morrisey; Auditor J.B. McCuskey; and members of the state Senate and House of Delegates who helped craft and pass the Save Women’s Sports Act.
The lawsuit says that on the day following the shot put event, Lincoln Middle School Principal Lori Scott informed one of the parents that the athletes would be suspended for the meet on April 27.
Another parent was told by Riestenberg that the athletes would not be allowed to compete because, as coach, it was her job “to score points for the track team.”
The suit argues that punishing the students for constitutionally protected speech violates the First Amendment to the U.S. Constitution; Article III, Section 7 of the West Virginia Constitution; and Supreme Court precedent in numerous cases such as Tinker v. Des Moines Independent Community School District, which found students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The suit also claims that the decision to suspend the students without a hearing violates the West Virginia Code of State Rules, which gives the executive director of the West Virginia Secondary Schools Activities Commission “the sole power to investigate, evaluate, and ultimately decide whether any possible sanctions should issue as a result of protest action.”
Morrisey filed an amicus brief in support of the students, noting, among other things, that while principals can suspend students for failing to appropriately represent a school, “these girls have done nothing to lead anyone to believe that they would represent their school in an inappropriate manner. Quite to the contrary: they have, in truth, represented their school exceptionally well by demonstrating their personal objections in a clear but nondisruptive protest action and then providing a clear, concise explanation for that protest at a public press conference.”
Following the girls’ suspension, Gaines posted on X, “Rather than banning the boy from girls sports, they ban the girls from girls sports. You can’t make this stuff up. Sue them into oblivion.”
The school’s decision to throw the girls off the team comes in the wake of an overhaul of the Title IX amendment to the 1964 Civil Rights Act that protects girls and women in K-12 schools and colleges from discrimination 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.
{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.”
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