West Virginia Transgender Sports Ban Repealed

A federal appeals court on Tuesday blocked a West Virginia law that bans transgender students from participating in sports teams consistent with their gender identity, concluding that the measure violates their constitutional rights.

The American Civil Liberties Union (ACLU) challenged the measure in 2021, shortly after it was signed into law, claiming that it discriminated against transgender students. The organization filed the lawsuit on behalf of eighth-grade track and field athlete Becky Pepper-Jackson.

The ACLU argued that because the student had not gone through male puberty, there was no inherent advantage for Pepper-Jackson to compete against athletes born as female, so she should be allowed to compete.

Fourth Circuit Judge Toby Heytens agreed with the ACLU, overturning a lower court ruling, and went a step further by ruling that the law violates Title IX protections. A district court initially allowed Pepper-Jackson to compete on the school’s track team, but reversed its decision early last year.

“The law’s sole purpose — and its only effect — is to prevent transgender girls from playing on girls’ teams,” Heytens wrote in Tuesday’s appellate decision.

“Offering BPJ a ‘choice’ between not participating in sports and participating only on men’s teams is not a real choice,” he continued. “Defendants cannot expect BPJ to counter her social transition, her medical treatment and all the work she has done with her schools, teachers and coaches for almost half her life by introducing herself to teammates, coaches and even opponents like a boy.”

Heytens added that Pepper-Jackson was treated “worse than” other athletes because she is transgender, finding that the state’s attempts to ban the high school student from its track team counted as discrimination based on sex in violation of Title IX. .

“By participating on men’s teams, BPJ would be sharing the field with boys who are bigger, stronger and faster than her because of the high levels of circulating testosterone she lacks,” he wrote. “The Act thus exposes BPJ to the same harms that Title IX seeks to prevent by effectively ‘excluding[ing]’ She ‘participates in’ all non-coeducational sports entirely.

Heytens, who was nominated by President Biden, was joined in the ruling by Judge Pamela Harris, an Obama appointee. Judge Steven Agee, appointed by former President George W. Bush, agreed to allow Pepper-Jackson to compete but disagreed with the court’s Title IX ruling.

The same court blocked the application of the law early last year. The Supreme Court declined to hear an appeal in the case.

Tuesday’s ruling was hailed by the ACLU as a victory for transgender West Virginians.

“We hope today’s ruling sends a message of hope to West Virginia’s trans youth,” Aubrey Sparks, director of the ACLU of West Virginia, wrote in a statement. declaration. “And a warning message to politicians who continue to dehumanize this vulnerable population.”

West Virginia Attorney General Patrick Morrisey (R) promised to “continue the fight” to enforce the legislation.

“I am deeply disappointed in the court’s split decision today,” Morissey said in a statement. declaration. “The Save Women’s Sports Act is ‘constitutionally permitted’ and the law complies with Title IX.”

“I will continue to fight to safeguard Title IX. We must continue to work to protect women’s sport, so that women’s safety is guaranteed and girls have a truly fair playing field,” he continued. “We know the law is correct and we will use every tool available to defend it.”