Under Title IX, Transgender Girl Allowed on Girls Team Despite W.Va. Law to the Contrary

In B.P.J. v. West Virginia State Board of Education, the Fourth Circuit Federal Court of Appeals reversed a federal trial court and upheld the Title IX claim of the Plaintiff; a transgender girl seeking to play on the school’s girl’s track and field team.  The Appellate Court held that a West Virginia law prohibiting transgender girls from participating in girls’ athletic teams (while allowing transgender boys to participate on boys’ sports teams) violated Title IX’s prohibition of discrimination on the basis of sex.

The Court majority (in a 2-1 decision) also declined to rule on BPJ’s claim that the West Virginia statute violated the equal protection clause of the U.S. Constitution. The Court sent the issue back to the trial court for a hearing on the merits of the claim as well as resolution of disputes regarding expert testimony.

BPJ is an eighth-grade student.  At birth BPJ’s sex was assigned as male but she has publicly identified as a girl since third grade.  She is receiving treatments consistent with gender dysphoria including puberty blocking medications. Her specific circumstances played a key role in the Court’s ruling.

In this regard, it is important to note that the Appellate Court did not invalidate the West Virginia statute. Rather, in only held that the statute violated the Title IX rights of BPJ based on the circumstances of her specific case.

For those of you following the Extra Mile you may recall the Fourth Circuit’s prior foray into transgender issues in the highly publicized case of GG v. Gloucester County School Board. In that ruling, the Fourth Circuit held that a school board policy not allowing GG, a transgender boy, from utilizing boys’ restrooms and required him to utilize separate restrooms violated the student’s constitutional right to equal protection and his rights under Title IX.  The dissenting Judge in BPJ continued to note his objection to the Appellate Court’s ruling in G.G. The U.S. Supreme Court declined to hear the school boards appeal of the ruling in G.G.

While not applicable to Illinois, the Fourth Circuit’s ruling emphasizes the complexity of transgender student issues for Illinois school boards. Please also note that the Department of Education recently issued final Title IX regulations which specifically impact transgender students. Contact Michelle Todd with your inquiries.