Supreme Court declines West Virginia bid to enforce transgender athlete ban

Washington — The Supreme Court on Thursday said West Virginia officials cannot enforce a law that bans transgender athletes from competing on female sports teams against a 12-year-old transgender girl, turning down a request from state GOP officials to lift a lower court’s order blocking the law while proceedings continue.

West Virginia Republicans sought intervention from the Supreme Court earlier this month, arguing in an emergency request that a federal appeals court issued an “unreasoned” decision that “unjustifiably upsets the way that things traditionally work in school sports.”

Justices Samuel Alito and Clarence Thomas dissented from the court’s decision to deny the state’s request that it lift the lower court injunction. In a brief opinion which Thomas joined, Alito said the issue at the center of the court fight is an important one that “this court is likely to be required to address in the near future, namely” whether Title IX or the 14th Amendment’s Equal Protection Clause prohibits “a state from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.”

At the center of the dispute is a state law known as the Save Women’s Sports Act, which was enacted in April 2021 and bars transgender public school students from playing on girls’ sports teams. The law permits students to play on athletics teams based on their biological sex and defines “male” and “female” by a student’s “reproductive biology and genetics at birth.” 

But the American Civil Liberties Union sued to block enforcement of the law on behalf of 12-year-old Becky Pepper-Jackson, a transgender girl from Harrison County, West Virginia, who wanted to compete on her middle school’s girls’ cross country team. Pepper-Jackson’s lawyers said in filings that “has known she is a girl for as long as she can remember” and receives puberty-delaying treatment and estrogen hormone therapy, so she will not experience endogenous puberty. 

Pepper-Jackson and her mother argue the law violates the 14th Amendment of the Constitution and Title IX, the landmark civil right law that prohibits sex-based discrimination in schools or programs that receive federal funding. 

A federal district court in July 2021 temporarily stopped school officials in West Virginia from enforcing the law against Pepper-Jackson, finding the law’s application would likely violate the Constitution and Title IX. But in January, U.S. District Judge Joseph Goodwin did an about-face and declared the ban constitutional, allowing it to take effect.

Pepper-Jackson appealed to the U.S. Court of Appeals for the 4th Circuit, and a divided panel of judges granted her request to put the law on hold, which paved the way for Pepper-Jackson to try out for and compete on the girls’ spring track-and-field team in late February.

In their emergency request to the Supreme Court, West Virginia Attorney General Patrick Morrisey and lawyers for the state called the 4th Circuit’s injunction “unreasoned and incorrect,” and said Pepper-Jackson, who is referenced by her initials B.P.J. in court papers, will not succeed on the merits of the case.

“All parties, B.P.J. included, agree that separated sports teams serve important interests,” state officials wrote. “Consistent with that starting point, the Act makes the reasonable judgment that many have made before: Biological differences between males and females matter in sports. Both Title IX and the Fourteenth Amendment allow that judgment.”

State attorneys also claimed the 4th Circuit’s decision undermines equal protection, as the decision harms biological female athletes who will continue to be displaced as long as biological males join women’s sport teams.

The state is joined in the suit by Lainey Armistead, a former soccer player at West Virginia State University who claimed the state’s law shielded her from potentially having to compete against transgender women.

But lawyers for Pepper-Jackson said that she has been participating on girls’ sports teams at her middle school for the past three seasons, “harming no one,” and pushed back on the state’s claims that her participation in the cross-country and track teams has displaced other female athletes.

Instead, they note that Pepper-Jackson wasn’t fast enough to qualify for girls’ running events in the spring 2022 season and instead participated in the shot put and discus. Pepper-Jackson “consistently finishes at the back of the pack,” her lawyers pointed out.

The emergency request from state officials “fails at every requisite step, including by failing to identify any harm that warrants this Court’s intervention to block B.P.J. from continuing what she has been doing for more than a year and a half,” they argued. Pepper-Jackson is identified in court filings as B.P.J. “This Court’s intervention should be reserved for true emergencies. This is not one.”

The Harrison County School board and superintendent said in earlier proceedings that Pepper-Jackson’s participation on her school’s cross-country and track teams did not cause any disruption or displace fellow students.

Pepper-Jackson’s lawyers also argue West Virginia’s ban is “not only a stark departure” from the state’s prior policy, under which transgender students could participate on sports teams consistent with their gender identity if their school allowed it, but also at odds with policies governing other elite sporting organizations such as the International Olympic Committee and National Collegiate Athletics Association.

“Excluding transgender students from facilities and programs — as H.B. 3293 does to B.P.J. — constitutes ‘discrimination’ by treating transgender students worse than similarly situated cisgender students and harming protected individuals,” they said.

The court battle over West Virginia’s law marks the first time the Supreme Court has been asked to wade into debates over participation by transgender athletes in girls sports. More than a dozen states passed laws restricting transgender girls from competing on schools’ female sports teams, and 21 Republican attorneys general filed a brief urging the Supreme Court to let West Virginia’s law take effect.

The case, they said, “threatens the constitutionality of girls-sports policies in a growing number of states.”

The high court has been confronted with disputes over policies prohibiting transgender students from using the restroom and locker room facilities consistent with their gender identity. Most recently, in 2021, the court declined to take up a years-long battle over a Virginia school board’s policy, leaving a lower court decision in favor of transgender student Gavin Grimm in place.

One year earlier, the Supreme Court ruled that a federal civil rights law that bars workplace discrimination on the basis of sex extends to LGBTQ employees.