National politics turns to the transgender question

When a metaphorical hand grenade in the culture wars is tossed onto the Supreme Court’s docket, the institution will be perceived as taking sides no matter what it does. That is why the court usually hews closely to its time-tested principles of law and equity to resolve an increasing number of emergency requests.

Last week, in an unsigned order, the Supreme Court disposed of one such shrapnel-prone issue when it denied a request for emergency relief filed by the state of West Virginia. If the Court had granted the request, it would have allowed West Virginia to enforce its state law requiring student athletes to compete on public school sports teams based on their biological sex—regardless of their current gender identity.

While the media stokes the temptation to read the decision as a broad-based affirmation of transgendered students’ campaign to play sports on the team of their choice, the legal reality is more nuanced.

The procedural history for this federal litigation is important. In April 2021, the West Virginia legislature adopted a law restricting participation in public-school girls’ teams to students who were born female, largely based on concerns that male-bodied athletes could endanger both the fairness of the competition and the safety of the competitors. The mother of B.P.J., a biological male who runs on the cross-country and track teams at a West Virginia middle school, filed suit arguing that barring B.P.J. from the girls’ team violated the Constitution’s Equal Protection Clause and Title IX, the federal statute that bars sex-based discrimination in federally funded education.

Initially, the federal district court ruled that B.P.J. could continue to compete while the court considered the case, but in January this year, it agreed with the state, holding that biological males have “physiological advantages” over biological females, and that these “inherent” advantages make “biological males … not similarly situated to biological females” in athletics. It concluded that West Virginia’s law did not violate the Constitution or Title IX, and thus dissolved its earlier injunction.

Then, by a 2-1 vote in February, a panel of the intermediate federal court of appeals granted an emergency injunction pending appeal, allowing B.P.J. to compete with the girl’s track team in the interim.

West Virginia asked the Supreme Court to stay that injunction, allowing it to enforce its law while the appellate courts consider the merits. But the Supreme Court denied that request. This means that the appellate court’s injunction allowing the student to compete on the girl’s team while it considers the case on the merits will remain in effect.

The law may be on West Virginia’s side, which is what the district court (the only court to consider the merits of the case) concluded. But obtaining extraordinary relief on the Supreme Court’s emergency docket requires more than convincing the justices on the merits. Applicants for extraordinary relief also need to demonstrate that they will be irreparably harmed without the intervention of the Court. As the Supreme Court has often reiterated, however, “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”

Justice Alito, joined by Justice Thomas, dissented from the Court’s order. In their view, the court of appeals’ majority had not justified its own use of its emergency powers to stymie the enforcement of state law, writing no explanation for its decision.

It also seems troubling that the majority concluded that the usual rule—that a federal court cannot invade a state’s sovereignty by preventing the state from enforcing its laws—was either inapplicable or outweighed by some other consideration in this case.

That other consideration may have been the initial lack of vigor on the part of the state’s litigators. As Justice Alito’s dissent noted, the state had allowed the district court’s preliminary injunction “to go unchallenged for nearly 18 months before seeking emergency relief from a second, identical injunction. And it is a wise rule in general, that a litigant whose claim of urgency is belied by its own conduct should not expect discretionary emergency relief from a court.”

The Court will eventually face the question of whether the Constitution or statute, in Justice Alito’s words, “prohibits a State from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.”

That became even more likely when the Biden administration announced that it would soon release a proposed federal regulation that would ban states nationwide from enforcing laws like West Virginia’s—but also “would not prohibit a recipient’s use of sex-related criteria altogether.” Even if the final rule released by the Department of Education mirrors yesterday’s proposal, it may face challenges from both LGBTQ groups disappointed that it would still permit some schools to assign student athletes to teams that correspond with their biology and physiology, as well as challenges from the 20 states that have adopted laws intended to protect women’s sports from being dominated by male-bodied athletes.

Keep in mind that, in the West Virginia case, the Supreme Court has only denied an emergency request in an unsigned order. Thus, it has not ruled definitively on the merits and its denial has no precedential effect. And we should have every reason to believe that the Court will carefully apply the law as written when—not if—this controversy returns to the nation’s highest court, for it surely will.