Gender Equity Under Scrutiny: 4th Circuit Questions Law Prohibiting Transgender Girls from Competition

Gender Equity Under Scrutiny: 4th Circuit Questions Law Prohibiting Transgender Girls from Competition

B.P.J. v. W. Va. State Bd. of Edn., 98 F.4th 542 (4th Cir. 2024).

On April 16, 2024, the 4th Circuit Court of Appeals issued a split decision holding that West Virginia’s Save Women’s Sports Act (the Act) violated Title IX as applied to the plaintiff. The 2022 state law prohibited transgender girls from competition in girls and women’s sports in K-12 and college athletics throughout the state. After the Act went into effect, B.P.J., a transgender girl, was no longer allowed to compete on the middle school cross-country team. She sued the State Board of Education and local public school district, alleging that the Act violated the Equal Protection Clause of the Fourteenth Amendment and violated Title IX.

Beginning with the Equal Protection claims, the court applied intermediate scrutiny to the Act after determining that it constituted sex-based discrimination. The State’s position was that the law was enacted for the purposes of “participant safety” and “competitive fairness” to justify the Act’s treatment of transgender girls. The court questioned how B.P.J.’s exclusion from the cross-country team was substantially related to either of those interests. The facts of the case were that B.P.J. played a non-contact sport, so the court failed to see a participant safety issue. Additionally, the majority reasoned that B.P.J.’s early transition and prolonged use of hormone therapy called into question whether she enjoyed a competitive advantage over her cisgender peers. Since the parties disputed whether those assigned male at birth enjoyed a competitive advantage over cisgender girls, the court ordered further proceedings to debate the issue.

The public school tried unsuccessfully to argue that it should not be held liable since it was complying with the state law, rather than district policy that violated Title IX. While true, a federal law such as Title IX supersedes the district’s obligations to the state. After quickly dismissing the district’s argument, the court warned that mere compliance with a state law is not a legitimate defense to a Title IX violation.

According to the court, the Act discriminated against and caused harm to B.P.J. in violation of Title IX. The Act prohibited only one category of students, transgender girls, from competing on teams with their corresponding gender. The majority further explained that the state should not expect B.P.J. to go against her social transition to play on the boys’ team, and that the Act risked exposing her to the same level of unfair treatment that West Virginia claimed it was trying to prevent for cisgender girls because of B.P.J’s hormone treatments. The court was careful to note that its holding was a limited ruling on the Act as applied to B.P.J., and that it was not holding that Title IX required every transgender girl to play on a girls’ team.

What this means for your district
It is important to note that this decision applies only to the 4th Circuit. The ruling is limited to its facts as applied to a specific student playing a specific sport, and is not a blanket requirement that all transgender girls be allowed to compete on girls’ sports teams under Title IX. However, Title IX is a federal law and must be followed regardless of jurisdiction. Several states, including Ohio, have adopted similar legislation to West Virginia’s Save Women’s Sports Act. Conflict between these laws and Title IX may force districts into a situation where state compliance risks exposing them Title IX liability.

Ohio Court Emphasizes Need for Flexibility in Administrator Contracts

Ohio Court Emphasizes Need for Flexibility in Administrator Contracts

State ex rel. Ruble v. Bd. of Edn. of Switzerland of Ohio Local School Dist., 2024-Ohio-1542

The Switzerland of Ohio Local School District was sued by four administrators after their contracts were suspended by the Board of Education in July 2021. The Superintendent announced to the Board that he was recommending the suspensions due to the “reorganization and consolidation” of their administrative functions. After giving the administrators the required notice, the recommendation was adopted at the next board meeting listing the “financial condition of the school district” as a basis for the suspension of their contracts.

In a case argued by Ennis Britton’s own Michael Fischer, the Ohio 7th District Court of Appeals upheld the suspension of the administrators’ contracts on April 11, 2024 after determining the school board’s policy did not violate R.C. 3319.171. According to the court, Ohio’s administrative personnel suspension policy was meant to be construed broadly to give school boards the flexibility they need to adjust their administrative staff according to the needs of the school district.

In its decision, the court held that a district’s policy pursuant to R.C. 3319.171 needs to include the following:

  • One or more reasons that the board may consider for suspending any contract,
  • Procedures for determining the order of suspension of contracts, and
  • Provisions requiring a right of restoration for employees whose contracts of employment are suspended.

Additionally, school boards need to consider input from other administrators when developing its administrative personnel suspension policy.

However, the court noted that the statute does not require detailed lists of criteria for suspension, nor does it preclude the board from considering the overall needs and interests of the district when making staffing decisions. While the policy may not have been as detailed as the administrators argued it needed to be, the court noted that as long as the board’s policy meets the minimums established above as well as considering the administrators for other openings for which they may be properly qualified, the district is in compliance with the statute.

It is worth noting that the court suggested that the board’s policy, which was sourced from a third-party provider, may have been invalid for failing to consider the input from other administrators as required by R.C. 3319.171(C). But the court did not review this issue on appeal, since the argument never was properly raised by the administrators.

What does this mean for your district? Administrators do not have the same level of protection as teachers under Ohio law with regard to reductions in force. District policies still are required to meet certain statutory minimums, but R.C. 3319.171 is broadly construed to consider the best interests of the district and give boards of education the flexibility they need to adjust their administrative staff in response to changing circumstances.