Cases & Developments

Opinion partially vacating, reversing, and remanding summary judgment in favor of the State. Plaintiff, a now “13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade” and who has participated in her school’s girls’ cross country and track teams under preliminary injunction through the litigation below, brought equal protection and Title IX claims against the West Virginia State Board of Education challenging application of the State’s “Save Women’s Sports Act,” which provides that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex,” and defines “‘male’ as ‘an individual whose biological sex determined at birth is male.’” On cross-motions for summary judgment, the district court granted judgment to the State on both claims, finding that plaintiff’s equal protect claim failed because the State’s definition of “girl” was “substantially related to the important government interest of providing equal athletic opportunities for females” and that her Title IX claim failed because she may still try out for the boys’ teams. The Fourth Circuit reversed and directed entry of judgment in plaintiff’s favor on the Title IX claim pursuant to its finding that the Act operates on the basis of sex and treats girls who are transgender differently, “regardless of whether any given girl possesses any inherent athletic advantages based on being transgender.” It remanded the equal protection claim for further proceedings, finding that a factual dispute as to whether plaintiff’s exclusion from the girls’ teams was substantially related to competitive fairness since she never experienced elevated testosterone due to gender affirming hormone therapy, precluded a direct grant of judgment in her favor.