The Biden administration has been on a mission to transform Title IX and the protections provided to sports for women and girls in a way that Idaho Attorney General Raúl Labrador said during a press conference last week "seems to be contrary to the full intent and purpose of Title IX." States, however, like Idaho and West Virginia, are fighting back, as state attorneys general are looking to go all the way to the U.S. Supreme Court.
Last Thursday, Attorneys General Labrador and Patrick Morrisey of West Virginia announced that, along with Alliance Defending Freedom (ADF), they were filing a cert petition for the Court to take up B.P.J. v West Virginia State Board of Education and Hecox v. Little.
Women and girls deserve to compete on a level playing field. This isn't political or partisan—it’s basic fairness and common sense.
— Alliance Defending Freedom (@ADFLegal) July 11, 2024
Madison Kenyon and Mary Kate Marshall, our clients in Hecox v. Little, share their story below⬇️ pic.twitter.com/RUiRj6mq3G
As a press release from ADF explained about the cases:
...In B.P.J. v West Virginia State Board of Education, West Virginia Attorney General Patrick Morrisey and ADF are asking the Supreme Court to hear their case after the U.S. Court of Appeals for the 4th Circuit ruled to undermine West Virginia’s ability to protect fairness in women’s sports. The petition seeks review on behalf of West Virginia officials and athlete Lainey Armistead.
In Hecox v. Little, Idaho Attorney General Raúl Labrador and ADF are asking the high court to uphold their state’s Fairness in Women’s Sports Act after the U.S. Court of Appeals for the 9th Circuit upheld an injunction against enforcement of the law. The petition seeks review on behalf of Idaho officials and athletes Madison Kenyon and Mary Kate Marshall.
Morrisey and Labrador are seeking review due to lower-court rulings getting in the way of state laws protecting sports for women and girls. The Court has rejected hearing such cases before, but Morrisey explained during a press conference with Labrador they have reason to be hopeful.
As Morrisey explained, they "believe this is a very important issue to resolve," especially with differing rulings. "And then the combination of cases provides an opportunity for the Court to step in and to ensure that statutes of our country are not being rewritten, and that basic, common sense and fairness prevail," Morrisey added, which includes "the concept of men playing sports with women does not continue to advance and do further damage to Title IX."
Taking a question from Townhall, Morrisey further explained why this time is different, as it includes a definitive ruling and a request on the Title IX component. Morrisey believes that "warrants immediate review." Such a petition not only focuses on a circuit split, but "also the new information with respect to the incredible amount of displacement that's occurred" for women and girls.
"This is a very serious problem in West Virginia. And you are seeing the the eradication of competition because of the level of displacement and that's important as well," Morrisey explained. "There's a [West Virginia] law that should be operational now [to keep boys of girls' teams].
"We can't stand by and watch as the government pushes an ideology that turns back the clock on 50 years of progress for women . . . I'm proud to stand and ask the Supreme Court to do the right thing and protect young women."
— Alliance Defending Freedom (@ADFLegal) July 11, 2024
Lainey Armistead, client in B.P.J. v. West Virginia… pic.twitter.com/cyE1YNbAZ8
Speaking further to how there's a new "urgency" to this case, Morrisey also offered, "I think there's more of a need in light of this consistent effort to attack these statutes across the country and to advance a radical interpretation of Title IX by the Biden administration, there's a need for the court to step in and clarify the law."
Labrador also emphasized concerns with "the radical interpretation," which "lets the Court know that it's an issue that needs to be addressed soon, and it's causing confusion and chaos all throughout the United States in high school sports [and] university sports."
In explaining the legal history of the B.J.P. case, the petition notes some of the harm as well [Emphasis added]:
A parent sued on behalf of her child, B.P.J., arguing that the St"ate must allow biological boys who identify as girls to compete on girls’ teams. After extensive discovery, the district court disagreed, entering summary judgment for the State on claims under the Equal Protection Clause and Title IX. Yet a divided Fourth Circuit panel granted an injunction pending appeal. B.P.J. then beat and displaced hundreds of girls in track and field.
As the petition highlights, and as Morrisey spoke to specifically when it comes to West Virginia, there has been considerable "displacement."
Nevertheless, the ACLU still claimed that there wasn't harm. ADF's John Bursch offered evidence to refute that, including but not only with the B.P.J. case:
In West Virginia, the ACLU told the district court and then later the Fourth Circuit, that an injunction wouldn't hurt anybody because B.P.J. being allowed to participate in women's sports wouldn't hurt any girls. Well, under those injunctions, B.P.J. has displaced 283 girls some 704 times in track and field events...
Five girls dropped out of competing in women's track and field because they didn't want to compete against B.P.J. anymore. A.C., who we represent in one of the Title IX cases, lost the opportunity to compete at a conference championship because there were only three spots and B.P.J. took her spot.
...female athletes have been subjected to offensive and inappropriate sexual comments from their teammate B.P.J. The ACLU says that doesn't impact anybody else.
In Idaho, our intervenors Madison Kenyon and Mary Marshall were college women's track and cross country numbers at the Idaho State University. And they trained extremely hard to do as best as they could. And yet they lost by a significant margin in competition to June Eastland, who was a male athlete who identified as female and that shouldn't be a surprise because Eastwood had previously competed on the males' team, and his times at the males' events would have been national women's records if he had been competing in the women's division, and yet now they're forced to compete against him.
...
And these stories go on and on and on. And it's not just displacing women from the podium and from opportunities to compete for championships, but it's also the safety concerns... there was a women's basketball game and male identifying as female on the other team injured three women so badly they had to stop the game, and the all-women's team had to forfeit.
And so it's time for the US Supreme Court to do something about this. The Biden administration continues to drive an agenda through its Title IX reinterpretation that is going to make this problem worse, not better. And if you look at the circuit decisions in this case, they absolutely defy common sense.
The stakes are also considerable when it comes to not merely state laws in West Virginia and Idaho, but also half the states around the country.
Morrisey addressed how "25 state laws on these issues are now in doubt, and that doubt itself does great damage to fair, common sense, safe, athletic competition."
He also pointed to how "the legal challenges that have occurred across the country and the conflicting patchwork in the circuits, I think provides the best reason why the U.S. Supreme Court should take this up," as he spoke about how those 25 state laws "are in jeopardy if the Supreme Court doesn't take this up."
Morrisey went on to warn how "as every school season comes and goes, you know, more and more girls are going lose the benefits of safe and fair play," emphasizing, "So that's why it's so important to resolve this now. This has real-life impact and damage and we're trying to get it addressed now."
Labrador also reminded how "unfair" it is for women and girls to have to compete against men and boys.
"The stakes are high for young girls who want to compete in sports, and they see the inherent unfairness of this issue and they decide that they don't want to participate," he offered. "They don't want to be part of the sport or they quit because they see men actually competing in their spaces, they see men invading their spaces and they don't want to be part of that anymore. And I think the future of women's sports could be affected, the future of what sports do for people, even those who don't go on to the highest levels of sports... it forms and shapes their character, their ability to be successful in the future."
He also made clear when taking a question that he "100 percent" and "absolutely" believes "this to be a women's civil rights issue."