West Virginia transgender activities ban overturned

A transgender student from West Virginia’s athletics team could be banned from the sport if the court determines it violated their constitutional rights on Tuesday, according to a federal appeals court’s decision.

Shortly after it became law, the American Civil Liberties Union (ACLU) filed a lawsuit against the measure in 2021, alleging that it discriminated against transgender individuals. Becky Pepper-Jackson, a ninth-grade track athlete, was the subject of the lawsuit brought by the organization.

According to the ACLU, Pepper-Jackson should be allowed to compete because she had never experienced male puberty, which inherently advantages her over female competitors.

Toby Heytens, a judge for the Fifth Circuit, backed the ACLU, overturning a lower court’s decision, and went one step further by claiming that the legislation violates Title IX protections. Pepper-Jackson was initially allowed to compete on the track team by a district court, but that decision was overturned at the beginning of the school year.

In the appellate ruling on Tuesday, Heytens wrote in the administrative ruling that the Act’s sole purpose and effect is to prevent transgender women from playing on female teams.

“Offering B. P. J. a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all,” he continued. The defendants may reasonably hope 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 teammates, coaches, and even opponents as a child.”

Because of her transgender status, Pepper-Jackson was treated “worse than” other athletes, according to Heytens, who found that the state’s attempts to bar the middle schooler from her track team were sex-based discrimination in violation of Title IX.

“By participating on boys teams, B. P. J. because of her low circulating hormone levels, he wrote, would allow her to play 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.”

Heytens, appointed by President Biden, was joined in the decision by Judge Pamela Harris, an Obama nominee. Judge Steven Agee, chosen by former President George W. Bush, concurred in allowing Pepper-Jackson to compete but dissented in the court’s Title IX decision.

The same court had previously prevented the law from being enforced at the beginning of the year. The Supreme Court denied an appeal of the case.

Tuesday’s decision was praised by the ACLU as a victory for transgender West Virginians.

“The transgender youth of West Virginia are impacted by today’s decision,” ACLU of West Virginia Director Aubrey Sparks said in a statement. “And a reminder to lawmakers who continue to treat this vulnerable population inhumanely.”

West Virginia Attorney General Patrick Morrisey (R) vowed to “continue the fight” to enforce the legislation.

“I am greatly disappointed in the court’s divided decision today,” Morissey said in a statement. “The Save Women’s Sports Act is ‘constitutionally permissible’ and the law complies with Title IX.”

“I’ll continue to fight to preserve Title IX’s safety. We must keep working to safeguard women’s sports so that women’s safety is secured and women have a truly fair playing field,” he continued. “We are aware of the law’s validity and will use all means at our disposal to support it.”