Update on B.P.J. v. West Virginia Board of Education – U.S. Supreme Court Denies State’s Application To Lift Fourth Circuit’s Injunction Pending Appeal

As an update to yesterday’s blog post, today the U.S. Supreme Court rejected West Virginia’s application to vacate the Fourth Circuit’s order reinstating, pending appeal, the district court’s original preliminary injunction. That original injunction allowed the plaintiff, a biologically male transgender girl, to join the girls school track team over a state statute limiting girls teams to biological girls. As discussed in yesterday’s post, the district court then reversed itself to grant summary judgment to the state upholding the statute and dissolving the preliminary injunction. Without explanation a divided panel of the Fourth Circuit stayed the summary judgment order, thereby effectively reactivating the original preliminary injunction order pending the plaintiff’s appeal.

Without opinion the U.S. Supreme Court denied the state’s application to vacate the Fourth Circuit’s injunction. Justice Alito dissented, joined by Justice Thomas. Justice Alito particularly decried the Fourth Circuit’s failure to provide any explanation for reinstating the preliminary injunction after the district court had “granted summary judgment to the State based on a fact-intensive record.” 508 U.S. __ (2023), No. 22A800, Slip Op. at 2 (Apr. 6, 2023). He reasoned that if the district court’s analysis on the merits is correct, the “generally applicable stay factors plainly justify granting West Virginia’s application.” Id. Justice Alito also believed the State’s application “concern[ed] an important issue” the Court was “likely to be required to determine in the near future,” namely, whether the Equal Protection Clause or Title IX “prohibits a State from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.” Id. at 1.