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Appeals court overturns West Virginia law banning transgender girls from sports teams

Supreme Court declines to enforce ban on trans athletes
Supreme Court declines to enforce West Virginia ban on transgender athletes 01:28

A federal appeals court on Tuesday overturned the West Virginia law banning transgender girls from playing on girls' sports teams, finding that it violates Title IX, the federal civil rights law that prohibits sex-based discrimination in schools. The ruling comes amid a wave of anti-trans legislation cropping up across the country, as well as efforts to fight back against it.

The ban in West Virginia was originally signed into law by Gov. Jim Justice in 2021, and introduced as the "Save Women's Sports Act." It required that any official or unofficial school-sanctioned event involving athletics determine each athlete's participation in the event "based on the athlete's biological sex as indicated on the athlete's original birth certificate issued at the time of birth," effectively barring transgender students from participating.

The ruling from the 4th U.S. Circuit Court of Appeals said the law cannot lawfully be applied to a 13-year-old girl who has been taking puberty-blocking medication and publicly identified as a girl since she was in the third grade.

In February 2023, the court blocked the state's bid to kick Becky Pepper Jackson off of her middle school track and field team if the law were enforced.

Judge Toby Heytens wrote that offering her a "choice" between not participating in sports and participating only on boys teams "is no real choice at all."

"The defendants cannot expect that B.P.J. will countermand her social transition, her medical treatment, and all the work she has done with her schools, teachers, and coaches for nearly half her life by introducing herself to teammates, coaches, and even opponents as a boy," Heytens wrote.

Transgender Sports West Virginia
A pedestrian passes by the US 4th Circuit Court of Appeals Courthouse on Main Street in Richmond, Virginia, in 2021. Steve Helber / AP

The court Tuesday ruled in favor of the American Civil Liberties Union, its West Virginia chapter and LGBTQ interest group Lambda Legal, which filed a lawsuit in 2021 against the state and county boards of education and their superintendents as defendants. Republican Gov. Jim Justice had signed a bill into law earlier that year.

"This is a tremendous victory for our client, transgender West Virginians, and the freedom of all youth to play as who they are," ACLU West Virginia attorney Joshua Block said in a statement. "It also continues a string of federal courts ruling against bans on the participation of transgender athletes and in favor of their equal participation as the gender they know themselves to be. This case is fundamentally about the equality of transgender youth in our schools and our communities and we're thankful the Fourth Circuit agreed." 

In finding that the law violates Title IX when applied to the girl, the court noted that she has been publicly living as a girl for more than five years and changed her name, and the state of West Virginia has issued her a birth certificate listing her as female. The court said she takes puberty blocking medication and also takes estrogen hormone therapy. Starting in elementary school, she has participated only on girls' athletic teams.

"B.P.J. has shown that applying the act to her would treat her worse than people to whom she is similarly situated, deprive her of any meaningful athletic opportunities, and do so on the basis of sex. That is all Title IX requires," Heytens wrote.

West Virginia Attorney General Patrick Morrisey, a Republican, said he was "deeply disappointed" in the decision.

"I will keep fighting to safeguard Title IX. We must keep working to protect women's sports so that women's safety is secured and girls have a truly fair playing field," the Attorney General added. "We know the law is correct and will use every available tool to defend it."

Transgender Sports West Virginia
West Virginia Attorney General Patrick Morrisey speaks with reporters at the state Capitol in Charleston on Thursday, May 4, 2023. Jeff Dean / AP

Sports participation is one of the main fronts in legislative and legal battles in recent years over the role of transgender people in U.S. public life. Most Republican-controlled states have passed restrictions on participation, as well as bans on gender-affirming health care for minors. Several have also restricted which bathrooms and locker rooms transgender people can use, particularly in schools.

West Virginia is one of at least 24 states with a law on the books barring transgender women and girls from competing in certain women's or girls sports competitions.

The bans are in effect in Alabama, Arkansas, Florida, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and Wyoming. The National Association of Intercollegiate Athletics, an athletics association for small colleges nationwide, also announced on Monday that its leadership had approved a policy to ban transgender women from participating in women's sports.

Aubrey Sparks, the legal director of the ACLU of West Virginia, said in a statement after the ban was overturned Tuesday that the organization hopes the ruling "sends a message of hope to the trans youth of West Virginia" as well as "a message of warning to politicians who continue to dehumanize this vulnerable population."

In addition to West Virginia, judges have temporarily put enforcement of the bans on hold in Arizona, Idaho and Utah. But the 2nd Circuit revived a challenge last year to Connecticut's policy of letting transgender girls compete in girls sports, sending it back to a lower court without ruling on its merits.

A ban in Ohio is to take effect later this month.

The Biden administration originally planned to release a new federal Title IX rule — the law forbids discrimination based on sex in education — addressing both campus sexual assault and transgender athletes. Earlier this year, the department decided to split them into separate rules, and the athletics rule now remains in limbo.

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