West Virginian middle school transgender students are not prohibited from competing in cross-country and track with other girls, according to the U.S. government. The 4th Circuit Court of Appeals ruled on Tuesday.
The decision comes amid a national outcry against trans rights, which is largely driven by claims that trans women would badly dominate women’s sports and that young people are being prevented from transitioning too early. Those concerns have been used to support bans on health care, using people’s pronouns, and access to services for both transgender children and adults. However, the U.S. 4th Circuit’s Court of Appeals found that common social disputes were unrelated to the reality of 13-year-old Becky Pepper-Jackson in Bridgeport, Wyoming, Va.
Then in seventh grade, Pepper-Jackson has identified as female for five decades — roughly half her life, the judge noted. Since secondary school, she has only participated in girls’ sports. She has a birth certificate that indicates that she is a female. Additionally, she takes medicine to prevent male puberty, which the court claimed was crucial to its decision.
Pepper-Jackson, according to the judges, has never experienced the effects of higher levels of circulating testosterone, so the fact that those who do gain from increased strength and speed provides no explanation, much less a large one, for excluding her from the girls’ cross country and track teams. The plaintiffs claim to be shielding cisgender women, but the court argued that forcing her to join a boys’ group or not play at all would expose her to the same risk of unfair competition and physical danger because she would be “sharing the field with guys who are bigger, stronger, and faster than her because of the increased levels of circulating testosterone she lacks.”
That is against federal civil rights law, the court said. That does not imply that “we do not hold that government officials are unable to establish separate sports teams for boys and girls or that they lack the authority to monitor the distance drawn between those teams,” the judges continued. No, it does not imply that every transgender girl must participate in girls’ teams regardless of whether they have gone through puberty or have had high levels of circulating testosterone. Only in Pepper-Jackson’s “particular case” is the ban discriminatory, it said.
Tuesday’s decision was written by Judge Toby J. Heytens, a Biden appointee, and joined by Judge Pamela Harris, an Obama appointee. Judge G. Steven Agee, an appointee of George W. Bush, in contrast, said he hoped that the Supreme Court would resolve these issues of national importance with all the necessary diligence.
The Christian conservative organization Alliance Defending Freedom, which supported this law and other restrictions on trans rights, made it clear that an appeal may be filed. Legal counsel Rachel Rouleau argued that the decision “undermines equal opportunities and contradicts both biological reality and common sense.”
Despite its conservative stance, the Supreme Court’s potential actions are uncertain. The high court granted Idaho the authority to impose a criminal ban on transgender-affirming medical care on Monday. However, the court also declined last year to permit the enforcement of West Virginia’s law while it was undergoing legal challenges in the 4th Circuit.
The 4th Circuit was once the nation’s most conservative appellate court, which also handles appeals from federal courts in Maryland, Virginia, North Carolina, and South Carolina. It is currently a pioneer in the field of trans rights. The Supreme Court upheld the ruling, which was the first appellate court to grant a trans student’s right to use the bathroom to reflect his gender. Additionally, it was the first to designate gender dysphoria, or a disconnect between a person’s gender and the gender they are assigned at birth, as a disability protected by federal law. Additionally, the court is considering whether state health plans must cover treatments that promote gender.
Pepper-Jackson’s attorney, Joshua Block of the ACLU, claimed the case was a part of a string of federal courts that favored transgender athletes’ equal participation as the gender they know themselves to be. Transgender students have won in court from Arizona to Connecticut. No appellate court has decided against trans athletes on the merits, he said, despite the fact that some of those decisions have been put on hold for appeal.
According to a 2023 Washington Post-KFF poll, the majority of Americans support laws promoting trans equality in schools and other settings, and gender is determined at birth. Republicans have seized on those snags and backed transgender equality laws both state and federally. While the state’s recent legislation aimed at trans minors caused little reaction in 2016, when it was widely known that North Carolina prohibited trans people from using the bathrooms that correspond to their gender identity.
Since 2020, about half of U.S. states have passed laws that prohibit transgender girls and women, and occasionally boys and men, from publicly funded scholastic sports. In 2021, West Virginia passed a law prohibiting students from competing on girls’ teams if they have a biological sex that is determined at birth.
Trans advocates say the question of who should play women’s sports, while politically heated, is blown out of proportion. In Kentucky, a state law similar to the one in West Virginia affected only a single student-athlete. Competitive sports leagues have their own guidelines for transgender athletes.
When she first sued over the ban, Pepper-Jackson said she “regularly finishes near the back of the pack” in track and field. She was placing higher in some events before the decision was made, but she was still trailing in others. Agee argued that those results were both unfair and evidence of a biological advantage. According to him, Pepper-Jackson caused biological girls to be displaced and denied athletic opportunities.
The majority of people in the room believed Pepper-Jackson’s claim that she had a biological advantage if she was placed in front of another girl in a competition. There are few studies on transgender performance and how long hormone therapy takes to remove physiological benefits for trans female athletes who went through male puberty. However, the court made the observation that the scientific evidence is uncontested that these advantages only develop after male puberty.
The Biden administration has proposed regulations that would allow federally funded schools to forbid trans students from participating in sports only if the decision was justified based on the sport, the student’s age, and the level of competition. Those rules, when released, could change how courts analyze similar cases in the future, Block said.
Pepper-Jackson also challenged the state law under the 14th Amendment’s equal protection clause. However, the judges argued that West Virginia’s lack of an “important state interest” in keeping Pepper-Jackson off the team was not demonstrated by the factual record, which is unconstitutional under federal civil rights law.
