BRIDGEPORT, W.Va. (WBOY) — A West Virginia case about whether or not transgender students should be allowed in girls’ sports was in the Fourth Circuit Court of Appeals on Friday, as both sides asked for summary judgment.
B.P.J. v. West Virginia State Board of Education began in Bridgeport, but as Judge G. Steven Agee said himself, it’s believed to be on its way to the Supreme Court of the United States.
B.P.J. is a 13-year-old student at Bridgeport Middle School who identifies as a girl but was born male and wants to run on the girls’ track team, but West Virginia’s Save Women’s Sports Act (HB 3293) prohibits “biological males from participating on athletic teams or sports designated for biological females where competitive skill or contact is involved.”
Oral arguments by attorneys Joshua Block, representing B.P.J. and Heather Jackson; Roberta Green, representing the West Virginia Secondary School Activities Commission, and Lindsay See, representing The State of West Virginia, were heard before judges G. Steven Agee, Pamela A. Harris and Toby J. Heytens. Judge Agee was nominated in 2008 by George W. Bush, Judge Harris was nominated in 2014 by Barack Obama and Judge Heytens was nominated in 2021 by Joe Biden.
The judges asked the attorneys a number of questions, including how this case differs from Grimm v. Gloucester County School Board, when Gavin Grimm, who identifies as a transgender boy, sued his school board for its restroom policy, which directed Grimm to an “alternative appropriate private facility.”
“There’s a quantitative difference between this case and Grimm, you know, Grimm dealt with restroom usage, well in a colloquial sense, that’s not that much different than breathing, or sleeping, everybody ‘goes,'” Judge Agee said. “It doesn’t require a particular skill set once you get past the age of four or five.”
Block answered, “The difference is in a different interest, I think defendants also say that there’s a difference because there are real physiological differences that come into play that are relevant to athletics, and the problem with that argument is that B.P.J. doesn’t have those physiological differences and HB 3293 is intentionally drafted so that it excludes transgender girls regardless of whether those physiological differences exist.”
B.P.J., according to Block, is seen as a girl by peers and has not gone through male puberty. Block said he is arguing that HB 3293 is unfair to all students who meet those criteria.
Back in July, a group of attorneys, including state Attorney General Patrick Morrisey and attorneys with the Alliance Defending Freedom, filed a motion against the injunction allowing B.P.J. to compete, arguing other athletes were being harmed by B.P.J. competing and placing in the top 8 at several Track and Field meets in the discus and shot put events.
Judge Heytens presented a hypothetical question to See, asking if the State of West Virginia would care if “Cisgender girl 1” finished 10th one year, and “Cisgender girl 2” moved into West Virginia over the summer, joined the team, and “Cisgender girl 1” finished 11th the next year.
“No, your honor, and that’s because the classification is because the classification there is—” See said.
“You wouldn’t care, the State of West Virginia is utterly indifferent to whether ‘Cisgender Girl 2’ beats ‘Cisgender Girl 1’, right?” Judge Heytens said.
“Right, because in that context, it wouldn’t be unfair competition, it’s not an unfair playing field to say that those two girls should be competing against each other,” See said.
Both sides requested summary judgment in the case. An appeal in the case is expected regardless of the outcome.
On Saturday, the case made national headlines once again when B.P.J. and Heather Jackson spoke with NBC News.
“I want to keep going because this is something I love to do, and I’m not just going to give it up,” B.P. J. said to NBC News. “This is something I truly love, and I’m not going to give up for anything.”
Morrisey also expressed the desire to keep fighting.
“The law is simple and correct and we will adamantly defend it,” Morrisey said. “If we have to take this fight all the way to the U.S. Supreme Court, then that is exactly what we’ll do.”
Judge Agee ended the oral argument session thanking the attorneys.
“I want to thank all counsel for their arguments today, realizing we’re likely only a weigh station on the way to the Supreme Court,” Judge Agee said.
The appeal could go to the entire 4th Circuit or to the Supreme Court.