Fourth Circuit judges open girls' sports to boys

Woke jargon runs amok

This week, a divided panel of the Fourth Circuit ruled that a West Virginia law providing that girls’ sports teams “shall not be open to students of the male sex” violates Title IX. That’s the federal law that opened up the wide world of sports to girls and women not, the drafters no doubt assumed, to boys who say they are girls and men who say they are women.

Reading the majority opinion is a disorienting experience, akin to watching Chico and Groucho Marx at their zaniest. The majority throws around woke jargon in ways that make one’s head spin. It thereby reaches a result that would make no sense if the reasons were written in plain English.

The plaintiff in the case is a 13-year-old boy who “identifies” as a girl. This biological boy has competed against girls in track and field. He brought the suit so he could keep doing so in the face of state law that bars him from girls’ sports. So far, the plaintiff has competed successfully enough in cross-country, shot-put, and discuss events to deprive numerous girls of the opportunity to compete for honors at major track meets. (See dissenting opinion at 41)

The West Virginia law that bars the plaintiff from competing against real girls provides:

Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by any public secondary school or a state institution of higher education . . . shall be expressly designated as [either male, female, or coed] based on biological sex

and

Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.

“Female” is defined as “an individual whose biological sex determined at birth is female.” “Male” is defined as “an individual whose biological sex determined at birth is male.”

The essential passage in the majority’s opinion is this:

The defendants. . .insist the Act does not discriminate based on gender identity because it treats all “biological males”—that is, cisgender boys and transgender girls—the same. But that is just another way of saying the Act treats transgender girls differently from cisgender girls, which is—literally—the definition of gender identity discrimination.

(Opinion at 20)

I agree with Ed Whelan that this analysis is “bonkers.” It would be transparently so, but for the court’s use of the silly, confusing label “cisgender girls” when it means biological girls who correctly identify as girls and the misleading label “transgender girls” when it means biological boys who identify as girls. (Ed wonders whether the judges in the panel majority became “discombobulated by their own transgender rhetoric.” Probably not, the liberal judges likely knew what they were doing. However, they managed, momentarily, to discombobulate me.)

Under a sane, jargon-free analysis, the West Virginia law doesn’t discriminate on the basis of gender identity. Boys who identify as girls (like the plaintiff) have the same rights to compete in sports as boys who identify as boys. Both sets of boys can compete in boys’ sports. Neither can compete in girls’ sports.

The West Virginia law does discriminate, but it does so on the basis of sex, not gender identity. Boys and girls are treated differently when it comes to sports. Boys, but not girls, can compete is boys’ sports. Girls, but not boys, can compete in girls’ sports.

But this discrimination is not legally problematic because the state has an important interest in ensuring equal opportunities for females in sports. The plaintiff did not dispute that this is an important purpose for Equal Protection purposes. Allowing biological boys to compete in girls’ sports deprives girls of equal opportunity to succeed.

As for Title IX, unlawful discrimination under that statute means treating an individual worse than others who are similarly situated (this is also true for Equal Protection purposes). The district court judge (a Clinton appointee) found that the West Virginia law doesn’t fall afoul of Title IX because “biological males [like the plaintiff] are not similarly situated to biological females for purposes of athletics.” (Emphasis added) Biological boys as a class are bigger, faster, and stronger than biological girls.

As the dissent said: “It seems axiomatic that because biology provides a competitive advantage in sports, biology is a significantly relevant characteristic for the similarly situated analysis.” (Dissenting opinion at 44) Indeed, this biological reality should be dispositive in that analysis.

The majority emphasized the fact that the plaintiff in this case is on puberty blockers, but this doesn’t change the analysis. It’s probably true, as the majority stresses, that the biggest advantage biological boys have over biological girls stems from differing levels of circulating testosterone, which is the result of puberty. But even without these differing testosterone levels, boys possess physical advantages that predate puberty.

Those who remember their time in grade school know this. Those who can’t remember back that far are invited to visit their local playground or a soccer field where girls and boys play. Prepubescent biological boys as a class are bigger, faster, and stronger than prepubescent girls.

In district court, the defendant, West Virginia, presented an expert report to support this obvious reality. The plaintiff presented an expert report that reached the opposite report. The district court made no ruling as to which report it believed.

On appeal, the court majority noted the conflicting reports. Because the district court didn’t adjudicate between them, the majority did not opine as to which report is correct. Yet the majority found a Title IX violation, anyway. (Oddly, though, it used the unresolved clash of experts as a basis for remanding the case insofar as plaintiff’s alleged an Equal Protection violation. Ed suspects it did this to stave off an appeal to the Supreme Court.)

Both the plaintiff and the majority seemed a little sheepish about this case. The plaintiff insisted that he sought relief from the West Virginia law only insofar it applied to “her” — as if that relief could be granted without major implications for girls’ sports.

The majority went along with the gag. It stated:

We hold only that the district court erred in granting these defendants’ motions for summary judgment in this particular case and in failing to grant summary judgment to [plaintiff]. on her specific Title IX claim.

(Opinion at 37, emphasis added)

It’s easy to understand the sheepishness, biology and public opinion being what they are. . However, the majority’s view of “this particular case” — that biological boys and biological girls who share only the same gender identity are similarly situated for purposes of sports — can be relied on by any biological boy who says he’s a girl (or at least any such boy who uses puberty blockers) and wants to compete against girls.

This result obviously undercuts Title IX and, indeed, has the potential to ruin girls’ sports. As the dissent says:

The majority’s decision to “commingle[] . . . the biological sexes in the female athletics arena” hurdles in the opposite direction [of Title IX] and “significantly undermine[s] the benefits afforded to female student athletes under Title IX’s allowance for sex-separated sports teams.” “[I]f sport[s] were not sex segregated, most school-aged [biological] females would be eliminated from competition in the earliest rounds” or “may not even make the team.” It is no understatement to say that the inclusion of transgender girls on girls’ teams will drive many biological girls out of sports and eviscerate the very purpose of Title IX.

(Dissenting opinion at 53, internal citations omitted)

I agree with Ed Whelan: “The Supreme Court needs to grant review of this case at the first opportunity and reverse.”