The Supreme Court recently denied West Virginia’s request for emergency relief granting it authority to enforce a prohibition on trans athletes. In light of the Court’s decision, the state must wait for the Fourth Circuit to render a final appeal decision before enforcing the law.
The case concerns a West Virginia law, passed in 2021, that prohibits transgender women and girls from participating on public school sports teams that are consistent with their gender identity. A then-11-year-old transgender girl sued after the law prevented her from participating on her middle school’s cross country and track teams. She claims the law violates Title IX, which prohibits sex discrimination, as well as the Equal Protection Clause of the Fourteenth Amendment.
A federal court in West Virginia initially granted an injunction blocking enforcement of the law, but later reversed course and granted summary judgment for the state. The Fourth Circuit Court of Appeals reversed, granting a preliminary order preventing the law from being enforced while the appeals court considers the case more fully.
The state then filed an emergency request asking the Supreme Court to intervene and throw out the injunction. The Court ruled by a 7-2 majority to reject the state’s request for expedited relief. Although hailed as a victory for trans student-athletes and LGBTQ rights advocates, the Court did not render a final decision on the merits. Instead, the Court simply declined to intervene at this stage of the litigation to overturn the lower court’s injunction against West Virginia’s law.
As is customary for decisions decided on the court’s emergency docket, sometimes called the “shadow docket,” the Court rendered its decision without a written opinion. Decisions are made on the emergency docket without full briefing or argument and are meant to be resolved quickly for issues of imminent importance. In this instance, the Court took a full month to render its decision, an unusually long period for shadow docket action.
Justices Alito and Thomas dissented, arguing that the state should be allowed to enforce the law. In a short dissent, Alito admitted that the fact that the state waited 18 months while an injunction was in place before appealing belied the need for “emergency” relief. The Justice nevertheless contended that the lower court’s decision was based on a full review of the facts, and the state has an interest in enforcing duly-enacted laws.
West Virginia is one of 19 states with similar laws on the books prohibiting transgender athletes from participating in sports. Opponents of such bans are especially incredulous of West Virginia’s law because it appears targeted at almost no one. The plaintiff in the instant case is literally the only transgender girl in West Virginia identified by either party who has tried to play school sports. It’s as if the West Virginia legislature got together to pass a law targeting exactly one little girl.
According to the plaintiff’s lawyers, the state’s law serves no legitimate state purpose, especially as applied to her. She has been “welcomed by teammates and coaches” and “has not had any problems with children on other schools’ teams.” The plaintiff has identified and lived as a girl since fourth grade. She is now undergoing “puberty-delaying treatment and estrogen hormone therapy,” so she “has not experienced and will not experience endogenous puberty.” Accordingly, she will not gain any of the physiological characteristics developed by boys, and will instead develop “physiological characteristics consistent with hormonal puberty of typical girls.”
Even the district court, in ruling for the state, acknowledged that “not one child has been or is likely to be harmed by B.P.J.’s continued participation on her middle school’s cross country and track teams.” The court was “unpersuaded, as Defendants have argued, that B.P.J. finishing ahead of a few other children, who would have placed one spot higher without her participation, constitutes a substantial injury. In the end, the only person truly injured by the enforcement of the Act against her is B.P.J., who must now watch her teams compete from the sidelines.”
In Alito’s dissent, he alluded to the fact that the case concerns “an important issue” that the Court would be “required to address in the near future.” That issue--whether the Equal Protection Clause and Title IX protect trans kids--is cropping up in courts around the country and will likely reach the Court soon enough. Notwithstanding the Court’s decision on this procedural matter, given the conservative supermajority of justices, it’s far from clear where the Court will land.
