The West Virginia law prohibiting transgender girls from playing on girls’ sports teams was overturned on Tuesday by a federal appeals court, which determined that it was in violation of Title IX, the federal civil rights act prohibiting sex-based discrimination. The decision comes as a flood of anti-trans laws is being introduced all over the nation, along with efforts to stop them.
West Virginia’s restriction was first signed into law by Governor Jim Justice in 2021, introduced as the “Save Women’s Sports Act.” It forbade transgender students from participating in any formal school-sponsored athletics event by requiring that any official or unofficial school-sanctioned athletics event establish each player’s membership “based on the player’s biological sex as indicated on the athlete’s original birth certificate issued at the time of birth.”
The Fourth U.S. Circuit Court of Appeals ruled that the rules may be legally applied to a 13-year-old girl who has been taking puberty-blocking medicine and who has identified as a girl since she was in the next grade.
If the laws were to be upheld, the jury in February 2023 blocked the state’s request to remove Becky Pepper Jackson from her middle school track and field team.
There is no real choice at all between giving her a “choice” between not competing in sports and joining the boys’ teams, according to Judge Toby Heytens.
“The defendants can’t anticipate that B.P.J. will countermand her social change, her medical care, and all the work she has done with her schools, instructors, and coaches for roughly half her life by introducing herself to colleagues, coaches, and even opponents as a son,” Heytens wrote.
The American Civil Liberties Union, its West Virginia chapter, and the LGBTQ rights advocacy group Lambda Legal, which filed a lawsuit in 2021 against the state and county boards of education and their superintendents as defendants, were granted a favorable ruling on Tuesday. Republican Gov. Jim Justice had already signed the bill into law earlier that year.
According to ACLU West Virginia attorney Joshua Block, “This is a tremendous victory for our client, transgender West Virginians, and the freedom of all youth to play as they are.” Additionally, it follows a number of federal court decisions that favor transgender athletes’ equal participation as the gender they know themselves to be. We’re grateful that the Fourth Circuit agreed with us because it’s primarily about the equality of transgender youth in our schools and our communities.
The court noted that she has been publicly living as a girl for more than five years and has changed her name, and that the state of West Virginia has given her a birth certificate listing her as a woman. In finding that the law violates Title IX when applied to the girl. She is said to be taking both estrogen hormone therapy and puberty-blocking medication. Starting in elementary school, she has participated only on girls’ athletic teams.
“B.P.J. has demonstrated that using the act on her would treat her worse than people to whom she is similarly positioned, prevent her from having any meaningful athletic opportunities, and do so on the basis of sex. That is all Title IX requires,” Heytens wrote.
West Virginia Attorney General Patrick Morrisey, a Republican, said he was “deeply disappointed” in the decision.
“I will continue to fight to protect Title IX. We must continue to work to protect women’s sports so that girls have a truly fair playing field and women’s safety are ensured,” the Attorney General continued. We are aware that the law is sound, and we will use all available legal defenses.
In recent years, sports participation has been one of the main fronts in legal and legislative battles involving the role of transgender people in the U.S. public life. Most Republican-controlled states have passed restrictions on participation, as well as bans on gender-affirming health care for minors. Some restrictions apply to transgender people’s access to locker rooms and bathrooms, particularly in schools.
West Virginia is one of at least 24 states that prohibit transgender women and girls from competing in particular women’s or girls’ sports competitions.
The bans are in effect in Alabama, Arkansas, Florida, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and Wyoming. The leadership of the National Association of Intercollegiate Athletics, an athletics body for small colleges across the country, also announced on Monday that a policy had been approved to forbid transgender women from playing women’s sports.
The ACLU of West Virginia’s attorney, Aubrey Sparks, stated in a statement following the overturning ban on Tuesday that the organization hopes the ruling “sends a message of hope to the trans youth of West Virginia” as well as “a message of warning to politicians who continue to dehumanize this vulnerable population.”
In addition to West Virginia, judges have temporarily put enforcement of the bans on hold in Arizona, Idaho, and Utah. However, the 2nd Circuit reintroduced a challenge to Connecticut’s policy of letting transgender girls compete in girls’ sports last year, sending it back to a lower court without ruling on its merits.
Later this month, a ban will be implemented in Ohio.
A new federal Title IX rule, which addresses both campus sexual assault and transgender athletes, was
originally planned by the Biden administration. The law forbids discrimination based on sex in education. The department made the decision to divide them into separate rules earlier this year, and the athletics rule is still in debate.
