West Virginia v. B. P. J. · ¶183

Here, B. P. J. argues that the State’s sex classification fails heightened scrutiny not only because it does not fit her subclass, but also because it operates as a categorical exclusion, much like the classifications in Caban, Virginia, and Trimble. Here, unlike in Nguyen, there are no procedures for her to follow to prove that she is similarly situated to cisgender girls and thus able to participate on the girls’ team. Because this Court’s equal protection analysis of sex classifications has generally considered whether the classification fits discrete subclasses and the extent to which subclasses are burdened, it matters if B. P. J. is right about the purported problems she identifies. At this stage, the Court therefore needs additional facts to assess whether B. P. J. is in fact correct, and whether, as a result, the State has “unnecessarily” refused her an exception.

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