B.P.J. v. West Virginia

What’s at stake: Whether the federal civil rights law Title IX and the Constitution provide transgender student athletes the right to compete on teams consistent with their gender identity.

Summary: Becky, a 12-year-old girl, wanted to run for her middle school’s cross-country and track teams. But a West Virginia law banned her from doing so because she is transgender. As a trial court recognized, West Virginia’s law was a “solution in search of a problem.” The governor signed it even though he could not name a single transgender athlete in West Virginia. West Virginia’s ban is part of a recent wave of legislation that seeks to curb the rights of transgender people across the country, and one of dozens of state laws that bar transgender students from participating in school sports.

Becky filed a lawsuit challenging the ban under Title IX and the Constitution’s Equal Protection Clause. Initially, the district court ordered the school to let Becky try out for the girls’ cross-country and track teams. She ran for the next three years with the full support of her coaches and teammates and no complaints from other teams. But in January 2023, the district court changed course: It granted the state’s motion to dismiss the case, ruling that West Virginia’s ban was legal.

Becky appealed to the U.S. court of Appeals for the Fourth Circuit. Public Justice joined an amicus brief filed by the National Women’s Law Center and fifty other organizations. The brief argued that West Virginia’s ban violates Becky’s right to be free of sex discrimination in school, under both the U.S. Constitution and Title IX. It also argued that the law harms cisgender girls, especially Black and brown girls, who do not conform to sex stereotypes, who will be disproportionately targeted and policed under the ban.

On April 16, 2024, the Fourth Circuit ruled for Becky.

The next year, the Supreme Court granted West Virginia’s request to review that decision. Public Justice recently filed an amicus brief in the Supreme Court. The brief explains that Supreme Court precedent means that Title IX prohibits discrimination based on gender identity and sexual orientation. The Supreme Court will likely rule on the case before the end of this Supreme Court term in the summer of 2026.

Core Legal Questions: The core issues in this case are whether excluding transgender students, like Becky, from school athletic teams that align with their gender identity constitutes discrimination that violates the Constitution’s Equal Protection Clause and Title IX.

Under the Equal Protection Clause, laws that classify individuals based on sex are subject to intermediate scrutiny. Here, the Court must decide whether West Virginia’s law, as applied to Becky, is substantially related to the asserted governmental interest in providing “fair and safe athletic opportunities” for cisgender girls.

Under Title IX, schools that receive federal funds must not discriminate “on the basis of sex.” The central question here is whether West Virginia’s law discriminates against Becky on the basis of sex. West Virginia also asks the Court to resolve the broader question of whether Title IX’s protections apply to sexual orientation and gender identity.

In its amicus brief in the Supreme Court, Public Justice explained that Title IX’s plain text prohibits discrimination based on sexual orientation and gender identity. Public Justice pointed to Bostock v. Clayton County’s recent interpretation of Title VII, the federal employment discrimination statute, which held that discrimination “because of sex” encompasses discrimination based on LGBTQ status. Public Justice argued that the same reasoning applies to Title IX, which provides important protections against the many forms of discrimination that LGBTQ students face at school.