Courts uphold sex-based distinctions in school sports and restrooms, dealing setback to ACLU

Advocates for school policies based on gender identity faced two legal setbacks in a week, with federal appeals and trial courts rejecting ACLU challenges to sex-based restroom and sports competition policies in two states.

Days after the full 11th U.S. Circuit Court of Appeals upheld a Florida high school's requirement that students use the restroom for their sex, calling it an "immutable characteristic" under Title IX, U.S. District Judge Joseph Goodwin upheld West Virginia's Save Women's Sports law.

"While some females may be able to outperform some males, it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes," Goodwin wrote. 

The transgender plaintiff acknowledged that "circulating testosterone in males creates a biological difference in athletic performance," the opinion said. Goodwin cannot conclude "the state's classification based on biological sex is not substantially related to its interest in providing equal athletic opportunities for females."

The 11th Circuit and Goodwin's rulings are a reversal of fortunes for the ACLU, which recently convinced the 2nd Circuit to uphold Connecticut's transgender sports policy and blocked Idaho's pioneering Fairness in Women's Sports Act in trial court in 2020. 

The 9th Circuit heard mootness arguments in May 2021 based on plaintiff Lindsay Hecox's uncertain return to Boise State University, remanding the transgender competitor's challenge to Idaho law, but is now considering another appeal.

U.S. District Judge David Nye ruled last summer the case was not moot due to Hecox's spring 2022 return, participation in women's club soccer and intention to try out for women's track and cross-country.

The ACLU didn't respond when asked for its response to the legal setbacks and next steps.

State bills that would enshrine sex-based eligibility for girls' school sports, often titled "Save Women's Sports" or "Fairness in Women's Sports," have a mixed record even in generally conservative states. 

South Dakota Republican Gov. Kristi Noem vetoed such a bill in spring 2021 but quickly reversed herself amid blowback, signing a new bill a year later. Last month, Ohio's General Assembly rejected a sex-based sports bill hours after it passed the Senate.

A bill offered last year by Wyoming Republican Sen. Wendy Schuler, whose student athletic career started before Title IX, passed that chamber but didn't even get introduced in the House, both dominated by Republicans. 

Cowboy State Daily reported Wednesday that Schuler is bringing the bill back this year, shorn of its original application to college sports. She cites the inconsistency created by the Wyoming High School Activities Association's policy that punts decisions to individual schools but says they should consider students "in a manner that is consistent with their gender identity."

The West Virginia legislation was provoked by the Connecticut policy, which enabled the dominance of two biologically male runners in girls' track. 

Goodwin blocked the law when the ACLU sued on behalf of another would-be women's cross-country and track athlete, an 11-year-old who started taking blockers at the first signs of male puberty. The President Clinton appointee initially determined "B.P.J." had a "likelihood of success on the merits of her as-applied challenge." 

The judge accepted intervention from the Alliance Defending Freedom on behalf of former West Virginia State University soccer player Lainey Armistead in support of the law. ADF also intervened in favor of the Idaho law and sued to overturn the Connecticut competition policy on behalf of female cross-country and track athletes.

Goodwin appears to have been swayed by the "thousands of pages filed by the parties in this case," specifically citing Armistead, despite controlling 4th Circuit precedent in a transgender restroom case now at odds with the 11th Circuit's ruling. The judge speaks in the first person 23 times in 23 pages.

"[D]espite the politically charged nature of transgender acceptance in our culture today, this case is not one where the court needs to accept or approve B.P.J.'s existence as a transgender girl," the judge wrote. "Ultimately, B.P.J.'s issue here ... is with the state's definitions of 'girl' and 'boy,'" which Goodwin deemed "constitutionally permissible."

Sex discrimination laws must be backed by "exceedingly persuasive justification" under Supreme Court precedent, a test met by West Virginia law, the opinion said. It cited 4th Circuit precedent requiring that "preference rests on evidence-informed analysis rather than on stereotypical generalizations."

The preteen's unusual circumstances — starting blockers rather than taking cross-sex hormones to limit the advantage of male puberty — can't overcome the fact that "a person either has male sex chromosomes or female sex chromosomes," Goodwin wrote.

"I recognize that being transgender is natural and is not a choice," the judge said. "But one's sex is also natural, and it dictates physical characteristics that are relevant to athletics," regardless of whether "some females may be able to outperform some males." (The 2nd Circuit found such exceptions persuasive.)

Gender transitioning may not start until after male puberty, not all trans girls can get hormone therapy "depending on her age and the state where she lives," and the voluminous record shows "much debate over whether and to what extent" that therapy can reduce male athletic advantage.

Goodwin emphasized the contradiction between B.P.J.'s argument that low-testosterone boys are not "similarly situated" with average girls under Title IX and the Equal Protection Clause, and the student's argument that "availability of hormone therapies makes transgender girls similarly situated to cisgender girls ... at the moment they verbalize their transgender status."

B.P.J. has equal athletic opportunity under Title IX, just not in the opposite sex's sports, the judge wrote. "There is no serious debate that Title IX's endorsement of sex separation in sports refers to biological sex," and the court has no grounds to require the state to be "more inclusive and adopt a different policy."

The ruling had an important sleeper provision, deeming the West Virginia Secondary Schools Activities Commission a "state actor" subject to constitutional obligations. 

Counties have delegated their "authority to supervise and control interscholastic athletic events" to the commission, principals sit on its Board of Controls, and the state Board of Education must approve its rules, making the commission "pervasively entwined" with the state, Goodwin said.

And while "I have no doubt" the law "aimed to politicize participation in school athletics for transgender students," Goodwin said B.P.J. couldn't show legislative "animus" for transgender people beyond a bill cosponsor who "liked" anti-transgender comments on his Facebook post.

George Washington University law professor John Banzhaf called the ruling a victory for objective eligibility criteria. "Would a 20-year-old be permitted to compete in the Senior Olympics" based on his feelings or beliefs, "even if he claims that many senior citizens can outperform some 20-year olds?" he wrote in a press release.