Supreme Court refuses to reinstate West Virginia’s transgender athlete ban

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The Supreme Court on Thursday refused to immediately reinstate a West Virginia law barring transgender athletes from playing on female sports teams from middle school through college.

The 2021 law was challenged by 12-year-old Becky Pepper-Jackson, who wants to remain on her middle school girls’ track team. It has largely been on hold since its passage, and an appeals court is reviewing its constitutionality. The law defines eligibility for certain sex-specific teams to “be based solely on the individual’s reproductive biology and genetics at birth.”

Pepper-Jackson’s case was the court’s first examination of restrictions on transgender athletes, and came on an emergency application from the state. Thursday’s action means the lower court’s order remains in place while the legal battles continue, but is not a decision on the merits of the case.

Justices Clarence Thomas and Samuel A. Alito Jr. said they would have granted West Virginia’s request to allow the law be implemented.

In a landmark decision in 2020, the court ruled that a federal law that protects employees against sex discrimination extends to gay and transgender workers.

West Virginia, backed by Republican attorneys general in 21 states, asked the Supreme Court to allow the athletic law to take effect, saying it is urgently needed to protect female athletes from players classified as male at birth who would otherwise have an advantage.

Under the law, anyone can compete on male and coed teams, but only those designated as female at birth can play on girls’ teams.

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The measure is part of a wave of recent legislation directed at transgender and gay individuals, much of which restricts access to gender-affirming medical treatment, sports participation for transgender athletes, or teaching about gender identity and sexual orientation.

A recent wide-ranging Washington Post-KFF poll found that many transgender Americans experience stigma and systemic inequality in many aspects of their lives, but most were happy that they had transitioned. About a third (32 percent) say they began to understand their own gender identity when they were 10 or younger, and another third (34 percent) realized it between the ages of 11 and 17.

West Virginia Attorney General Patrick Morrisey (R) told the Supreme Court that an order from the U.S. Court of Appeals for the 4th Circuit that temporarily kept the law from taking effect “harms girls by displacing them from athletic standings and women’s sports teams. And it harms the voters of West Virginia by canceling their legislative choices by flat judicial decree.”

Besides the other states, the West Virginia law was supported by a group of female athletes including tennis star Martina Navratilova. “A growing number of women and girls have been facing the humiliating and damaging experience of being forced to compete against males who identify as transgender in the women’s sports category,” their brief said. “Lawmakers in West Virginia passed a law to put a stop to this abusive and discriminatory practice.”

Becky, who has presented as a girl since fourth grade and whose name has been legally changed, is the only transgender athlete in the state known to be affected. She receives puberty-delaying treatment and estrogen hormone therapy, and has not gone through puberty, according to her brief.

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Becky’s legal team, including the American Civil Liberties Union and Lambda Legal, told the court there is no need for an emergency ruling while the appeals court considers whether the law is constitutional. For two seasons, Becky has participated on the cross-country and track teams, and her lawyers say there is no evidence she has displaced other girls who want to be on the team. Becky was cut from running events on the track team, and now participates in shot put and discus. She is not among the top performers, the court filings say.

The West Virginia law violates the U.S. Constitution’s 14th Amendment guarantee of equal protection, Becky’s lawyers argue, as well as the Title IX civil rights law barring sex-based discrimination in education.

Nineteen states have passed laws similar to the one in West Virginia in the last three years, according to the ACLU. But no appeals court has ruled on the constitutionality of such legislation.

U.S. District Judge Joseph R. Goodwin in Charleston blocked the law as applied to Becky soon after the West Virginia legislature passed it, allowing her to try out for the teams. But seven months later, after full briefing, Goodwin concluded the legislature had a valid purpose in passing the restrictions.

“While some females may be able to outperform some males, it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes,” Goodwin wrote. “This is not an overbroad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes.”

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At the same time, Goodwin called the law a “solution in search of a problem.” Using the initials with which she is identified in court documents, he wrote that “not one child has been or is likely to be harmed by B.P.J.’s continued participation on her middle school’s cross country and track teams.”

The judge nonetheless lifted his stay on the law. Becky’s legal team appealed, and a divided panel of the U.S. Court of Appeals for the 4th Circuit put the law back on hold while it reviewed the case and has ordered briefing by June.

The Supreme Court typically waits until there is a full airing of legal issues in the lower courts before taking up a dispute. Becky’s lawyers say there is no reason to rush judgment here, where the only result would be to “order B.P.J. off the playing field where she has been for her entire middle school career to date and where her presence harms no one.”

The case is West Virginia v. B.P.J.

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