West Virginia v. B. P. J.

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1 Cite as: 598 U. S. ____ (2023)
A
LITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 22A800
WEST VIRGINIA, ET AL. v. B. P. J., BY HER NEXT FRIEND
AND MOTHER
, HEATHER JACKSON
ON APPLICATION TO VACATE THE INJUNCTION
[April 6, 2023]
The application to vacate injunction presented to THE
CHIEF JUSTICE and by him referred to the Court is denied.
J
USTICE ALITO, with whom JUSTICE THOMAS joins, dis-
senting from denial of application to vacate injunction.
This application concerns an important issue that this
Court is likely to be required to address in the near future,
namely, whether either Title IX of the Education Amend-
ments of 1972, 86 Stat. 373, 20 U. S. C. §1681 et seq., or the
Fourteenth Amendment’s Equal Protection Clause prohib-
its a State from restricting participation in women’s or girls’
sports based on genes or physiological or anatomical char-
acteristics. The West Virginia Legislature enacted such a
law. The District Court here preliminarily enjoined the
law’s enforcement in July 2021, and the State did not ap-
peal that injunction for the almost-18 months during which
it was in effect. Ultimately, however, the District Court
granted summary judgment for the State and dissolved the
preliminary injunction. Respondent B. P. J. appealed, and
a divided panel of the Fourth Circuit issued an order enjoin-
ing enforcement of the law against B. P. J. for the duration
of the appeal. In doing so, the panel provided no explana-
tion whatsoever for its decision.
West Virginia has asked this Court to stay or vacate that
order, but this Court now denies that request. And like the
Fourth Circuit, this Court has not explained its reasons for

2 WEST VIRGINIA v. B. P. J.
A
LITO, J., dissenting
that decision.
I would grant the State’s application. Among other
things, enforcement of the law at issue should not be forbid-
den by the federal courts without any explanation. It is true
that West Virginia allowed the District Court’s injunction
to go unchallenged for nearly 18 months before seeking
emergency relief from a second, identical injunction. And it
is a wise rule in general that a litigant whose claim of ur-
gency is belied by its own conduct should not expect discre-
tionary emergency relief from a court. But in the circum-
stances present here—where a divided panel of a lower
court has enjoined a duly enacted state law on an important
subject without a word of explanation, notwithstanding
that the District Court granted summary judgment to the
State based on a fact-intensive record—the State is entitled
to relief. If we put aside the issue of the State’s delay in
seeking emergency relief and if the District Court’s analysis
of the merits of this case is correct, the generally applicable
stay factors plainly justify granting West Virginia’s appli-
cation.
For these reasons, I respectfully dissent.