Texas has a law that limits student participation in school-sponsored athletics to teams that are for the sex identified on the student’s birth certificate.  T.E.C. 33.0834. If your birth certificate says you were born a boy, then you may not participate in girls’ teams, regardless of transgender status, puberty blockers, or later alterations to your birth certificate. 

West Virginia has a similar law, the Save Women’s Sports Bill.  A federal judge in West Virginia has ruled that the state’s law is constitutional and does not violate Title IX.  Nor was it so motivated by animus toward transgender individuals that its legality was threatened.

Advocates for transgender athletes often claim that bills like this are strictly driven by animus toward the very existence of individuals who are transgender.  In this case that argument made its way into the court’s decision.  The plaintiff alleged that the bill was “part of a concerted, nationwide effort to target transgender youth for unequal treatment.”  The plaintiff cited the social media posts of one legislator in which he allegedly “liked” posts that advocated physical violence against girls who are transgender, and compared them to pigs.  The court cited a 1973 SCOTUS case for the proposition that a law would be unconstitutional due to “animus” only if “the reason for its passage was the ‘bare desire’ to harm transgender people.”  U.S. Department of Agriculture v. Moreno, 413 U.S. 528, 535.  That was not the case here:

While the record before me does reveal that at least one legislator held or implicitly supported private bias against, or moral disapproval of transgender individuals, it does not contain evidence of that type of animus more broadly throughout the state legislature.

There is considerable litigation on this issue with regard to the Equal Protection Clause and Title IX, and it is likely that courts will come to different conclusions until we get a SCOTUS decision. In the meantime, officials at the UIL and in local schools can cite this case as support for the legality of our statute. 

It’s B.P.J. v. West Virginia SBOE, decided by the federal court for the Southern District of West Virginia on January 5, 2023.  It can be found at 2023 WL 111875.

DAWG BONE:  WE’RE SURE TO SEE MORE BILLS ADDRESSING SIMILAR ISSUES THIS SESSION. STAY TUNED.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!