The West Virginia Attorney General’s Office has announced “a major update” about a recent federal appeals court ruling that 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.
Attorney General Patrick Morrisey plans an update at 1:15 p.m. Wednesday in the governor’s cabinet and conference room at the state Capitol along with state legislators and Riley Gaines, the former collegiate swimmer who has been active in the politics surrounding gender identity and women’s sports.
The majority on a three-judge panel with the Fourth Circuit U.S. Court of Appeals ruled against the State of West Virginia’s position last week on how state law would affect the eligibility of middle school athlete Becky Pepper-Jackson.
West Virginia passed a law in 2021 to join dozens of states placing restrictions on transgender athletes’ participation on sports teams.
The appeals panel did not invalidate West Virginia’s law, but the majority did conclude it would unfairly discriminate against Becky Pepper-Jackson under federal Title IX, which prohibits sex-based discrimination in any school or education program that receives federal funds.
Morrisey, speaking last week on MetroNews’ “Talkline,” said there could be consequences beyond this particular case.
“It’s supposed to apply to the specific student. Obviously there will be a lot of people if they are similarly situated, they may cite that or decide to go to court,” Morrisey said last week on MetroNews’ “Talkline.”
There is no guaranteed route for appeal now, but Morrisey said his office is considering further appeals possibilities that include asking all of the judges of the Fourth Circuit to review the case — or petitioning for consideration by the U.S. Supreme Court.
“We’re analyzing it, but we will be challenging it,” said Morrisey, a Republican candidate for governor.
Some of Morrisey’s opponents in the campaign for governor, which has a primary coming up on May 14, have suggested his office was too soft on the case.
An advertisement released last week for businessman Chris Miller features statements from two women citing concerns about a shared locker room. “The trans shouldn’t get more rights than what our kids have,” one of the women says, with both blaming Morrisey for lack of attention to the situation.
Another opponent for governor, Secretary of State Mac Warner, put out a statement saying Morrisey should recuse himself from the case regarding the eligibility of transgender athletes.
“This simply is not right, and it certainly is not fair to our female athletes,” Warner said in the statement released by his campaign. “Our girls, their families, and the citizens of West Virginia deserve the strongest non-compromised appeal of this flawed ruling by the Fourth Circuit.”
Morrisey’s campaign called comments like those “lies” and said Morrisey will continue to fight for conservative causes. “The fact is that the swamp is spending millions lying to us about Patrick Morrisey,” said Taylor Van Virk, representing the Morrisey campaign.
The policy at the center of all this, West Virginia’s 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, the plaintiff in the case, was born male but identified as a girl from a very young age. By third grade, she was living as a girl at home and told her mother and father she did not want to keep going to school dressed as a boy.
More recently, she was diagnosed with gender dysphoria and had been receiving puberty-delaying treatment for almost a year when West Virginia passed a bill affecting transgender athletes. Her federal lawsuit, where she is referred to as B.P.J., was aimed at being able to participate on the cross-country and track teams at Bridgeport Middle School.
“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 majority ruling included a caveat to be clear that the ruling does not cover all instances of transgender athletes participating on sports teams.
“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.”
Chris Geidner, a journalist who writes Law Dork analysis of significant court issues, focused on the West Virginia case in a recent post.
In a telephone interview, Geidner said the state has limited options for appeal. One would be to ask for all of the appeals judges on the Fourth Circuit to hear the case, “en banc,” in legal terms, although there’s no guarantee they would all agree to take it. Or the route to the Supreme Court of the United States would be to petition for writ of certiorari.
“Even though I think they have a poor chance of en banc review, I think they’d be better off with that,” Geidner said. “I think they’ve got a better chance of that than cert at this point.”
As it stands, the case would have likely ramifications for transgender athletes under similar circumstances, Geidner said.
“If nothing else, as a steward of the public’s money, if a student comes to a school district whose facts look awful close to the facts of Becky’s case, I would say that you’re basically throwing money away if you challenge it,” he said.
Gov. Jim Justice, who signed the bill into law, is also a girls basketball coach in Greenbrier County. Asked today at a news briefing what he would do if a transgender basketball player who had held off the effects of puberty were to try out for the team, Justice said he disagrees with the broader concept.
“To me, it’s as straightforward as straightforward can be: Boys competing with girls, it puts the girls at a significant disadvantage and it always will,” Justice said.
“There’s no point in me dancing around this in any way. I think it’s wrong. I think the court ruling’s wrong. I guess we’re going to always abide by laws, but I think the ruling is completely terrible.”
The governor continued, “Before you know it, you’re going to have Lebron James or somebody with a talent beyond belief say I want to be a girl and I’m going to play as a girl. And we say ‘Well, OK, that’s fine.’ It’s not OK with me.”
