BY LORI KERSEY | The 4th U.S. Circuit Court of Appeals in West Virginia has overturned the Transgender Athletics Act, a federal civil rights law prohibiting bias based on gender in training courses.
The case, B. P. J. vs. the West Virginia Board of Education, was filed in May 2021 on behalf of Becky Pepper-Jackson, a 13-year-old transgender middle school student and monitor swimmer who would be barred from participating if the ban is upheld. Lambda Legal, the American Civil Liberties Union, the American Civil Liberties Union of West Virginia, and Pepper-Jackson are represented by these organizations.
In April 2021, West Virginia Gov. A bill prohibiting transgender women and girls from playing sports that reflect their female identification was signed into law by Jim Justice. As legal experts challenged a lower court’s decision upholding the restrictions, the position was able to remove Pepper-Jackson from her school’s track and field team in February 2023.
In Tuesday’s ruling, Judge Toby Heytens wrote that offering Pepper-Jackson the “choice” between not participating in sports and participating only on boys teams is not a real choice.
The defendants can’t anticipate that B. P. J. may overrule her social change, her medical care, and all the work she has done with her institutions, teachers, and mentors for nearly half her life by introducing herself to teammates, coaches, and also competitors as a child,” the judge wrote.
“By participating on boys teams, B. P. J. because of her low circulating testosterone levels, he wrote, would allow her to play field with boys who are bigger, stronger, and faster than her. Thus, B. is exposed by the Act. P. J. to the very harms Title IX is meant to prevent by effectively ‘exclud[ing]’ her from ‘participation in’ all non-coed sports entirely.”
In a statement Tuesday, Joshua Block, senior staff attorney for the ACLU’s LGBTQ and HIV Project, called the court’s ruling “a tremendous victory for our client, transgender West Virginians and the freedom of all youth to play as who they are.”
Additionally, Block wrote, “This is the most recent in a line of federal courts to support the equality of transgender athletes as the gender they know themselves to be.” We are grateful that the 4th Circuit agreed with our concerns about the fundamental equality of transgender youth in our communities and schools.”
“We hope today’s ruling sends a message of hope to the trans youth of West Virginia,” Aubrey Sparks, legal director of the ACLU of West Virginia, said in the statement. And a warning to politicians who continue to treat this vulnerable population inhumane.”
West Virginia is one of the 21 states that, according to the ACLU, have outlawed trans student athletes over the past three years.
In a statement Tuesday, West Virginia Attorney General Patrick Morrisey vowed to defend the ban and said he is “deeply disappointed” in the decision.
“The Save Women’s Sports Act is ‘constitutionally permissible’ and the law complies with Title IX,” Morrisey said. I will continue to fight to protect Title IX. To ensure that girls’ safety is assured and that girls’ sports are treated fairly, we must continue to work to protect women’s sports. We are aware of the law’s validity and will use all means at our disposal to defend it.”
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With a decade of reporting in West Virginia, Lori Kersey is a reporter. For West Virginia Watch, she covers state government.
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The West Virginia Watch previously published this article, which is republished with permission.
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