Staff attorney Andreia Trifoi joins Mark Chenoweth and John Vecchione to discuss West Virginia v. B.P.J., one of the Supreme Court’s most consequential upcoming cases on women’s sports and Title IX. The case challenges whether states can restrict participation in female sports to biological women—and whether courts can reinterpret “sex” in Title IX to include gender identity.

Andreia explains NCLA’s amicus brief, which argues that the Fourth Circuit’s reading of Title IX violates the Constitution’s Spending Clause and the clear statement rule, by imposing conditions Congress never enacted. The discussion unpacks what’s at stake for state sovereignty, federal funding, and the future of women’s athletics.

Mark Chenoweth: Welcome to Unwritten Law with Mark Chenoweth and John Vecchione. We are delighted to be joined I believe for the first time on the program by Andreia Trifoi, staff attorney here at NCLA and someone who’s been very involved in writing an amicus brief for NCLA in a case that will be heard this term at the U.S. Supreme Court. The case is state of West Virginia v. B.P.J. What’s this case about, Andreia?

Andreia Trifoi: So, this case is one of the two big women’s sports case that is upcoming in front of the Supreme Court this term. So, to give a little background, the state of West Virginia enacted their Save Women’s Sports Act, which addressed what they saw as an increase of biological males competing on women’s sports teams, and as a result, displacing a lot of females from athletic opportunities in their schools. So, what –

Mark Chenoweth: And scholarships too, sometimes, right?

Andreia Trifoi: Yes, scholarships at both high school level, college level. And so, their Save Women’s Sports Act essentially restricts participation on female interscholastic sports teams to biological females. However, it doesn’t restrict biological males from competing – biological females, sorry, from competing on men’s sports teams. So, they enacted this law. It was challenged in West Virginia. The district court actually granted summary judgement for the state of West Virginia, and –

Mark Chenoweth: So, who is B.P.J.?

Andreia Trifoi: So, B.P.J. is a transgender female identifying biological male who wanted to compete on the women’s track team at her high school. She sued seeking to enjoin the law soon after it was passed. I believe she was in middle school at the time when she sued.

John Vecchione: So, and the way it works is that it’s by next friend and mother, Heather Jackson. So, you don’t have kid’s names in the name of cases, for everyone out there. That’s why it’s initial.

Mark Chenoweth: Minor’s names are protected because I guess there’s some sense that maybe they’re not the ones who’s making the decision to bring the lawsuit. So, you started to say what happened at the district court, and then…

Andreia Trifoi: So, the district court initially enjoined the Save Women’s Sports Act. When it went up on summary judgement, the judge granted summary judgement for the state of West Virginia, and found that the act did not violate Title IX, and did not violate the Equal Protection Clause. So, those were the two claims of B.P.J., that it violated Title IX and violated the Equal Protection Clause.

Mark Chenoweth: And this was the Fourth Circuit that made this decision?

Andreia Trifoi: That was at the district court.

Mark Chenoweth: Oh, okay.

Andreia Trifoi: So, then the Fourth Circuit on review reversed. And it found that the Save Women’s Sports Act violated Title IX for two reasons. So, it had affirmed a prior decision of the Fourth Circuit called Grimm v. Gloucester County, where that case said that discrimination on the basis of gender identity violates Title IX. And it also said that it violates Title IX because it treats the two sexes differently because it allowed biological females to compete on men’s sports teams, but did not allow biological males to compete on women’s sports teams. So, it vacated on equal protection grounds.

It found some discrete factual issue. However, the equal protection issue is still in front of the Supreme Court, but our amicus brief only focuses on the Title IX issue.

Mark Chenoweth: And what does our brief argue?

Andreia Trifoi: So, it might be helpful just to kind of give a framework of how the Supreme Court approaches Spending Clause cases because our brief focuses on the clear statement rule as it applies to the Spending Clause and Title IX. So, the Supreme Court has recognized that Congress can essentially incentivize states to carry out their policy directives and to regulate according to federal policy by attaching conditions to its grant of federal funds to the states or the state’s institutions.

Mark Chenoweth: Now, we sue over conditions on spending sometimes, but these are conditions that Congress has put on, which is different than if the Department of Education would do it on their own. Then, we would object to that, but if Congress is putting the spending conditions on, that’s okay under the Constitution?

Andreia Trifoi: Well…

Mark Chenoweth: Sometimes?

Andreia Trifoi: Sometimes. I think some scholars would disagree, but whether Congress has a power to legislate to spend for the general welfare is definitely up for debate, but I think we can have a whole other podcast on that.

Mark Chenoweth: But that’s not the question in this case.

Andreia Trifoi: Not the question in this case.

Mark Chenoweth: So, why is it relevant? So, Title IX was passed under Congress’s spending authority. Why is that relevant for this case?

Andreia Trifoi: So, according to Supreme Court precedent, Congress can essentially “legislate” under the Spending Clause past their enumerated powers on sort of a theory of state-based consent. So, the states consent to the conditions that Congress sets on their grant of federal funds, and they could receive those federal funds.

Mark Chenoweth: So, here’s this money, states. If you accept it, you’re accepting the conditions that come with it. And that’s a sort of consent theory of legislation.

Andreia Trifoi: Yes. And you can look at the kind of classic case that I learned in law school, South Dakota v. Dole where the Congress said they would withhold federal funds unless the states set their minimum drinking age to 21. They would withhold critical funds –

Mark Chenoweth: Federal highway funds, right?

Andreia Trifoi: – for federal highways unless the states raised their drinking ages, and…

Mark Chenoweth: And that was Department of Transportation, Secretary Elizabeth Dole at the time, I believe.

Andreia Trifoi: Yes. And so, there’s another case shortly before Dole came out called Pennhurst, which says that because legislation under the Spending Clause is in the form of a contract, that the terms of the contract must be clear. So, when Congress legislates under the Spending Clause, they must do so clearly and unambiguously, or else the states cannot knowingly and voluntarily accept its conditions. And so, that is what the legitimacy of the Spending Clause legislation rests on basically.

Mark Chenoweth: So, you can’t sneak in conditions. The states have to know what the bargain is before they accept it.

Andreia Trifoi: Before they accept it. And similarly, Congress can’t set retroactive conditions after the states have already accepted the funds. And so, our amicus brief argues essentially the Fourth Circuit incorrectly affirmed that Title IX protects against discrimination on the basis of gender identity. Title IX says nothing about gender identity. It says only that it prohibits discrimination on the basis of sex in state institutions that accept federal funds.

Andreia Trifoi: I think it was a pretty unknown concept. And if you look at all the dictionaries from that time, it defines sex in physiological terms.

Mark Chenoweth: Binary.

Andreia Trifoi: It’s a binary distinction between male and female. And the contemporaneous Department of Education regulations that came out after Title IX was passed also reflect that view, that sex is a binary distinction between male and female.

Mark Chenoweth: Well, I talked about this Title IX issue sometimes, and John, maybe you did too, with Harriet Hageman when she was here as one of our attorneys. She was actually in school when Title IX was passed and talked about the fact that there weren’t girl’s programs for a lot of the things when she was growing up in Wyoming. And then, when Title IX passed, then they had sports programs at the high school for women that they could take part in. And I think she ended up going to college on a rodeo scholarship, if I remember right.

Andreia Trifoi: Absolutely, yeah.

John Vecchione: You’re asking the wrong guy.

Mark Chenoweth: You don’t remember –

John Vecchione: Not only soccer.

Mark Chenoweth: You don’t remember Brandi Chastain? Come on, dude. This is –

John Vecchione: I do. I recognized her from commercials, not from the – anyway.

Mark Chenoweth: Oh, okay, very good.

Mark Chenoweth: So, you were talking about the Spending Clause and the argument we were making there, but I don’t think we quite put the dot on the I. So, what’s the argument that NCLA is making about the statute?

Andreia Trifoi: So, basically, our argument is that by reading a gender identity discrimination into Title IX, that runs afoul of the clear statement rule. And the clear statement rule is an important structural constraint on Congress’s power under the Spending Clause. Title IX clearly does not prohibit discrimination on gender identity. And so, the Fourth Circuit erred in reading that into the statute. And as a result, it has some serious consequences on expanding Congress’s under the Spending Clause and also administrative agencies’ power to administer spending conditions.

John Vecchione: And in fact, if as we just said, and I wanna drive this home, if Congress had suddenly added gender identity after they had already accepted the funds, we know that would be unconstitutional. And what the Fourth Circuit has done is added a condition after the law and the money had been accepted, just as if Congress or the administration had. So, it should be equally unconstitutional.

Mark Chenoweth: Neither the legislature, nor the executive, nor the judiciary can add a condition to the contract after the fact, and that’s essentially what the Fourth Circuit did is what you’re saying, John. And this infringes West Virginia’s right because this wasn’t part of the bargain that they thought they were accepting when they took the federal funds for Title IX.

So, if that gender identity is read into the statute, it would infringe upon the sovereignty of 27 states at least.

Mark Chenoweth: Invalidate potentially that many state laws. Are there any other arguments that we make in the amicus brief?

Andreia Trifoi: So, the two main arguments that we make is that education has traditionally been recognized as a core police power of the state. And so, when it comes to Title IX, it’s important to maintain the clear statement rule as a constraint on Congress’s power to regulate education. And similarly, if the Supreme Court recognizes that Title IX protects against discrimination on the basis of gender identity, it essentially allows there to be ambiguity. And so, reviewing courts and reviewing Spending Clause regulation can say oh, well, this term is ambiguous. It kind of gives a license to administrative agencies to fill in statutory gaps.

And we can see this happened recently. So, under the Biden Administration, they attempted to change the Title IX rule and read gender identity into it. And actually, their notice of proposed rulemaking is interesting because they say oh, well, the Department of Education historically has interpreted the term sex in Title IX to be biological sex, but we think it’s ambiguous. So, we think it can encompass gender identity. And well, by virtue of saying it’s ambiguous, that means that that can’t be a feature of the Title IX legislation. And so, that was struck down.

Mark Chenoweth: Because of the Spending Clause, clear statement principle, you were talking about.

Andreia Trifoi: And so, a district court in Kentucky vacated the prior administration’s attempt to rewrite the rule.

Mark Chenoweth: John, it almost sounds like they were counting on Chevron deference.

John Vecchione: Exactly. They probably were.

Mark Chenoweth: John took care of that though.

Andreia Trifoi: And it’s important to note that the clear statement rule isn’t a canon of statutory interpretation. It is a constitutional requirement. It starts at the beginning that Congress cannot legislate ambiguously when it comes to spending conditions.

Mark Chenoweth: And that’s not limited to this context. That’s any spending legislation that’s done.

Andreia Trifoi: Any spending legislation.

Mark Chenoweth: So, where does the case stand now? Has oral argument been set in this or…

Andreia Trifoi: Oral argument has not been set. We are still waiting for briefs from the government. And there is a companion case –

Mark Chenoweth: So, the government’s defending this?

Andreia Trifoi: The federal government is – submitted an amicus brief as well defending West Virginia’s law, and it’s been –

John Vecchione: Hasn’t –

Andreia Trifoi: Oh, I’m sorry.

Mark Chenoweth: Or –

Andreia Trifoi: I meant the ACLU is representing B.P.J., so we’re still waiting on usually – I’m so used to suing against the government, [inaudible – crosstalk] the government.

John Vecchione: I think what happened here, I think our friend Roman Martinez has been asked by the court to defend the law because the feds won’t do it. I –

Mark Chenoweth: Oh, the decision below?

John Vecchione: I think Roman’s arguing this one. I could be wrong. We have to check that, but I think the federal –

Mark Chenoweth: There is a case that I know he’s defending the decision below. I don’t know if it’s this one.

John Vecchione: So, it was the federal government has switched its position. And so, the court has asked somebody, I think it’s Roman, it could be someone else, to defend. And that’s what’s happening here.

Mark Chenoweth: But we’re thinking possibly January?

Andreia Trifoi: Yes, I think January. And it’s consolidated with another case out of Idaho called Little v. Hecox. And that case is interesting because that’s up on a preliminary injunction. And the ACLU attorney representing the plaintiff in that case actually tried to moot the case. So, they tried to dismiss their complaint at the district court. So, it seems like they’re expecting a loss, or else they wouldn’t be doing that. So, it’ll be interesting to see how that plays out.

Mark Chenoweth: That was an interesting development in that case. Well, anything else that you wanna add about this case?

Andreia Trifoi: Nothing to add except that it’s important in a lot of ways, but I think it’s interesting because the Fourth Circuit didn’t even reach the Spending Clause issue. They didn’t address the fact that Title IX is a Spending Clause legislation. So, it’ll be interesting to see if the court reaches it. I think it would be a very easy way to decide the case at least to the Title IX issue, but –

Mark Chenoweth: Would they avoid the equal protection issue if they decided it on the Spending Clause basis?

Andreia Trifoi: I think so. I think that could because the equal protection, it is an issue presented, but they didn’t actually reach it in the lower courts. So, they might just decide the Title IX issue first, but we’ll see.

Mark Chenoweth: Fantastic. Well, that was a very clear explanation, really appreciate that. And we’ll keep the audience up to date on what happens in this case. I guess if oral argument comes in January, maybe we’ll have you back, and we can talk about what happened then. Thank you very much, Andreia. Appreciate it.

Andreia Trifoi: Thank you.

Mark Chenoweth: You’ve been listening to Unwritten Law.

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Duration: 18 minutes