W. Virginia's Save Women's Sports law upheld by federal judge
Will the NC General Assembly revive its 2021 Save Women's Sports Act?
On Jan. 5, Judge Joseph R. Goodwin of the Southern District of West Virginia issued his ruling on West Virginia’s House Bill 3293, known as the "Save Women's Sports” bill.
The measure defines "girl" and "woman" as biologically female for the purpose of secondary school sports, and Godwin ruled it is "constitutionally permissible."
Godwin’s ruling found the state’s definition of biological sex is "substantially related to its important interest in providing equal athletic opportunities for females."
"I have no doubt that H.B. 3293 aimed to politicize participation in school athletics for transgender students," Goodwin wrote. "Nevertheless, there is not a sufficient record of legislative animus. Considering the law under the intermediate scrutiny standard, I find that it is substantially related to an important government interest."
The case involved Lainey Armistead, a former West Virginia State University soccer player.
Armistead, represented by Alliance for Defending Freedom (ADF), became part of the lawsuit, B.P.J. v. West Virginia State Board of Education, in defense of the law.
“Today’s decision is a win for reality. The truth matters, and it is crucial that our laws and policies recognize that the physical differences between men and women matter, especially in a context like sports,” ADF Senior Counsel Christiana Kiefer said in a press release.
“Female athletes deserve to compete on a level playing field. Allowing males to compete in girls’ sports destroys fair competition, safety on the field, and women’s athletic opportunities,” Kiefer said. “Female athletes across the country are losing medals, podium spots, public recognition, and opportunities to compete because of males competing in women’s sports. The court was right to affirm that West Virginia’s law is not only constitutional, but consistent with Title IX.”
In his ruling, Godwin dodged defining terms like “boy” or “girl,” instead claiming that "the courts have no business creating such definitions.”
After refusing to define those basic biological terms, Godwin acknowledged the physical differences between males and females.
"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,” wrote Godwin. “This is not an overbroad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes.”
Additionally, Godwin noted that “The transgender plaintiff acknowledged that "circulating testosterone in males creates a biological difference in athletic performance.”
Read Godwin’s Memorandum Opinion and Order.
On the other side of the West Virginia lawsuit are two outfits familiar to North Carolina: Lambda Legal and the American Civil Liberties Union (ACLU).
The ACLU has made it their cottage industry to file challenges to bills in various states that attempt to bar men in women’s sports, bathrooms, locker rooms, and any other area of society or location designated for women only.
The ACLU’s B.J.P. case page includes an image purportedly of the 11-year-old transgender plaintiff, “Becky.”
“Becky is a middle school student in West Virginia. She has been a cheerleader and wants the opportunity to try out for the cross-country team. A new law in West Virginia would ban her from doing so because she is transgender. Becky and her parents sued and are represented by the ACLU, the ACLU of West Virginia, Lambda Legal and Cooley LLP,” states the ACLU’s B.J.P. case page.
According to Godwin’s ruling document, “Becky” or “B.J.P.” began expressing they wanted to be a girl at three years old, fully believed they were a girl by third grade, yet admits the girl was diagnosed with gender dysphoria.
Is there a law like this in the Tarheel State?
North Carolina has not passed a law like West Virginia’s, although one was filed in 2021.
The Save Women's Sports Act (House Bill 358) was filed on Mar. 3, 2021, by primary sponsors Reps. Brody, McElraft, Wheatley, and Dixon.
Here are the main provisions of House Bill 358:
Prohibit male students attending public school units (or nonpublic schools that are members of State-level athletic associations) from participating in or playing on middle or secondary school interscholastic or intramural sports or teams designated for females, women, or girls.
Prohibit male students attending public and private institutions of higher education in North Carolina from participating in or playing intercollegiate or intramural sports or teams designated for females, women, or girls.
Require a student's sex to only be recognized based on reproductive biology and genetics at birth for purposes of athletic participation.
Prohibit governmental entities, licensing or accrediting organizations, or athletic associations or organizations from considering a complaint, opening an investigation, or taking adverse action against a school, public school unit, or institution of higher education, for maintaining
separate teams or sports for female students.
Create a civil cause of action for biological female students who are harmed as result of a violation of the bill, or who are retaliated against for reporting violations.
Create a civil cause of action for public school units or institutions of higher education that suffer harm as a result of prohibiting a biological male student from participating on a female, girls', or women's athletic team.
After several stricken referrals to various committees, the bill landed in the Committee on Rules, Calendar, and Operations of the House where it died.
Had House Bill 358 moved forward, it would have amended Chapter 115C of the General Statutes covering education statutes to add a new section covering "Biological Sex-Specific Athletic Teams."
The likely reason the bill never emerged again was a fear of more legal battles.
The bill’s own summary stated the measure “may raise legal considerations under the U.S. Constitution and federal law" such as The Equal Protection Clause of the 14th Amendment to the U.S. Constitution and Title IX.
Cited in the summary is Grimm v. Gloucester County School Board wherein the 4th Circuit used the Equal Protection Clause to invalidate a school district's policy requiring students to use the bathroom based on the sex listed on their birth certificates.
The 4th Circuit also found Grimm violated aspects of Title IX, which states Title "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
What’s interesting to note is that the documentation for House Bill 358 points out that the N.C. State Board of Education has essentially abdicated its authority over rules and regulations involving school sports to the North Carolina High School Athletic Association (NCHSAA).
For middle schools, “the State Board has adopted the Middle/Junior High School Athletic Manual, which prohibits boys from participating on "any girls’ team, as defined by interpretation of the Office for Civil Rights interpretation of Title IX in 1994."
It’s important to note that the Biden administration has resurrected the former Obama administration’s gender identity rules for Title IX.
For high schools, the NCHSAA originally prohibited men from participating on women's teams. However, all of that changed in 2019, when the NCHSAA changed its handbook to let students play on a team based on the gender on a student’s birth certificate or the student’s gender identity, “if a Gender Identity Request Form is submitted and approved.”
The 2022-23 NCHSAA handbook states "The NCHSAA allows participation in interscholastic athletics for all students, regardless of gender or gender identification."
In order for a transgender student to get on the team of their choice, they have to fill out the “Gender Identity Request Form” to be given to the NCHSAA “Gender Identity Committee.”
The section covering the gender of a player is on page 21. Below is a screengrab of the main thrust, which involves the “written verification” from an “appropriate healthcare professional” of the student’s “consistent gender identification.”
