Attorney General Patrick Morrisey announced his office will seek U.S. Supreme Court review of whether a state law violates the rights of a middle school track and cross country runner who identifies as a girl and uses puberty blocking medication.
The announcement was deeply intertwined with the politics surrounding West Virginia’s Republican primary election coming up on May 14. Morrisey is involved in a competitive Republican race for governor, where transgender issues have emerged as a dominant campaign theme.
“We will be filing it over the next month, and we want to make sure we’re going to time our filing to maximize the chance that this case is going to be heard and most importantly that we will win,” Morrisey said to claps from the other political figures who attended his announcement.
“This is one of the most important cases that my office has handled over the past 12 years. We are vigorously defending the law, and that law is reasonable. It’s based on biology, and it’s based on fairness. We are working to defend the integrity of women’s sports. We must protect our young women.”
Fairness West Virginia, an advocacy organization for fair and equal treatment of lesbian, gay, bisexual and transgender people, responded that comments like Morrisey’s contribute to a hostile environment where trans youth are much more likely to experience harassment, bullying and discrimination.
“Let’s be clear about what happened today. Patrick Morrisey told West Virginians that the most important case he’s worked on as attorney general – the most pressing issue facing our state – is whether or not one 13-year-old transgender girl is allowed to participate in her middle school’s cross country team.
“Instead of winning support from the voters with real ideas for a brighter future for our state, he’s trying to scare voters and demonize children,” said Jack Jarvis, communications director for Fairness West Virginia.
Morrisey made the announcement of a Supreme Court appeal attempt at a press conference surrounded by other political figures and Riley Gaines, the former collegiate swimmer who has been active in the politics surrounding gender identity and women’s sports.
“Allowing males to compete in women’s sports is risky, it is unfair, and it is discriminatory — and it must stop,” Gaines said in remarks at the press conference.
Also present at the event were track athletes from Lincoln Middle School who stepped out of a shot put ring during the Harrison County middle school track championships last week in protest of participation by transgender athlete Becky Pepper-Jackson, who won the event by a wide margin.
Becky Pepper-Jackson’s circumstances were at the center of a ruling last week by a three-judge panel of the Fourth Circuit U.S. Court of Appeals.
The majority of the panel concluded that West Virginia’s law banning transgender girls from participating on girls sports teams would unfairly discriminate against the middle schooler, who was born a boy but has been living as a girl, using medical treatment to hold off the effects of puberty.
The 2-1 ruling did not invalidate West Virginia’s law but was applied to Becky Pepper-Jackson’s specific situation under federal Title IX, which prohibits sex-based discrimination in any school or education program that receives federal funds.
“It applied specifically to the one person, but we’re obviously tremendously worried about the precedent value and we think it’s important to take that up and make sure that gets reversed,” Morrisey said today.
There is no more guaranteed appeal in the case, but the Supreme Court could decide to take up one of several cases involving the athletic eligibility of transgender people affected by state laws around the country.
West Virginia passed a law in 2021 to join dozens of states placing restrictions on transgender athletes’ participation on sports teams.
House Bill 3293, defines male and female “based solely on the individual’s reproductive biology and genetics at birth.”
A key part says, “Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”
Becky Pepper-Jackson, with support from ACLU West Virginia and other organizations, challenged whether the law would prevent her from participating on the girls cross country and track teams.
Early last year, U.S. District Judge Joseph Goodwin of the Southern District of West Virginia upheld the state law.
“The question before the court is whether the legislature’s chosen definition of ‘girl’ and ‘woman’ in this context is constitutionally permissible. I find that it is,” Goodwin wrote last year in a 23-page ruling.
His ruling was appealed to the Fourth Circuit, where the panel’s majority largely disagreed. The appeals ruling focused on the interaction between the state law and Pepper-Jackson’s individual circumstances.
“The question before us is whether the Act may lawfully be applied to prevent a 13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade from participating in her school’s cross country and track teams,” Judge Toby Heytons wrote in the majority opinion. “We hold it cannot.”
The appeals ruling also made clear that it only goes so far.
“We do not hold that government officials are forbidden from creating separate sports teams for boys and girls or that they lack power to police the line drawn between those teams. We also do not hold that Title IX requires schools to allow every transgender girl to play on girls teams, regardless of whether they have gone through puberty and experienced elevated levels of circulating testosterone.”
The appeals judges ordered the lower court to enter summary judgment for Pepper-Jackson on her claim that her rights have been violated under federal Title IX.
The appeals court majority also ordered the district court to vacate a summary judgment ruling that relates to the Constitution’s equal protection clause. So that piece of the case is still active at the district court level with questions to resolve.
Morrisey, when questioned by reporters at today’s briefing, acknowledged the Supreme Court would not act on the case before West Virginia’s primary election. The state’s next attorney general might wind up seeing it through. Attorney general candidates Mike Stuart, a state senator, and J.B. McCuskey, the state auditor, were at today’s announcement.
“I know I could say the case would not be heard before the May primary. Is it possible that it’s heard toward the end of the year? It’s always possible, but it also could be next year. The Supreme Court’s going to have to make that decision,” Morrisey said.
“And I will say this, I want to make sure that whoever sits in the attorney general’s position is going to have the full weight and support of all the resources that that attorney general needs to make the best argument.”
A rival candidate for governor, Secretary of State Mac Warner, has characterized Morrisey as soft on transgender issues and said he should step aside from this case.
“Patrick Morrisey and I do agree on two things,” Warner said after Morrisey’s press conference today.
“First, the Fourth Circuit Federal Court decision that Morrisey lost 2-1 must be appealed to the United States Supreme Court. Second, since the appeal will most likely not be heard till next year, it will be up to the next Attorney General, not Patrick Morrisey, to defend West Virginia’s law on transgender athletes. With Patrick Morrisey out of the way, I am confident that West Virginia stands a much better chance of prevailing in the appeal.”
