A federal appeals court on Tuesday rejected a West Virginia law requiring scholastic athletes to participate based on biological sex, handing a victory to a male-to-female transgender teen who competes against girls in track and field.
The 4th Circuit Court of Appeals voted 2-1 to reverse a lower-court decision that upheld the state’s Save Women’s Sports Act, ruling that the 2021 law violates the rights of transgender students under the Equal Protection Clause and Title IX.
Requiring 13-year-old Becky Pepper-Jackson to compete against boys after years of puberty blockers and sex-change hormones would “expose B.P.J. to the same risk of unfair competition — and, in some sports, physical danger — from which the defendants claim to be shielding cisgender girls,” said Judge Toby J. Heytens, a Biden appointee, in the majority opinion.
“B.P.J. has shown that applying the act to her would treat her worse than people to whom she is similarly situated, deprive her of any meaningful athletic opportunities, and do so on the basis of sex. That is all Title IX requires.”
Concurring with Judge Heytens was Judge Pamela Harris, an Obama appointee, while Judge G. Steven Agee filed a stinging dissent, saying the majority ruling “turns Title IX on its head.”
Judge Agee, a Bush appointee, pointed out that the teen has qualified for two conference championships and placed consistently in the top 15 or top 10 in competitions, meaning she has “displaced at least 100 biological girls at track and field events and pushed multiple girls out of the top 10.
“Thus, B.P.J.’s presence in biological girls’ sports has taken — and will continue to take — away opportunities from biological girls. The act, therefore, directly relates to West Virginia’s interest in ensuring equal opportunities for girls in sports. The majority errs in concluding otherwise.”
West Virginia Attorney General Patrick Morrisey said he was “deeply disappointed in the court’s divided decision” and pledged to “keep fighting” to defend House Bill 3293 and Title IX, the federal civil rights law prohibiting sex discrimination in education.
“We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field,” Mr. Morrisey said. “We know the law is correct and will use every available tool to defend it.”
BREAKING: The WV AG on Tuesday vowed to keep up the fight to defend WV’s Save Women’s Sports Act following a 2-1 ruling handed down by the US Court of Appeals for the Fourth Circuit reversing an earlier decision in favor of the state.
— WV Attorney General (@WestVirginiaAG) April 16, 2024
READ MORE: https://t.co/ynucWzRSsB pic.twitter.com/0ze2Gm3iAD
Cheering the decision was the American Civil Liberties Union, which represents the Pepper-Jackson family.
“This is a tremendous victory for our client, transgender West Virginians and the freedom of all youth to play as who they are,” said Joshua Block, senior staff attorney for the ACLU’s LGBTQ & HIV Project. “It also continues a string of federal courts ruling against bans on the participation of transgender athletes and in favor of their equal participation as the gender they know themselves to be.”
The decision comes with courts grappling with the surge in state laws banning male-to-female athletes in girls’ and women’s scholastic sports, an issue expected to reach the Supreme Court.
U.S. District Judge Joseph R. Goodwin ruled in favor of West Virginia’s law in a January 2023 decision, saying that “biological males generally outperform females athletically.” A month later, the 4th Circuit stayed enforcement of the law with a temporary injunction.
Twenty-four states have passed laws barring male-born athletes from competing in female scholastic sports based on gender identity. The Alaska Department of Education approved a similar policy last year via regulations.
Those measures are on hold in four states — Arizona, Idaho, Utah and West Virginia — pending the outcome of legal challenges, according to the Movement Advance Project map.
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