Court Overturns West Virginia Transgender Sports Ban

Shoes worn by an athlete at a U.S. high school on May 7, 2022. Katharine Lotze/Getty Images

A federal appeals court has blocked a West Virginia law that banned students from participating in single-sex sports teams that don’t match their biological sex.

The 4th Circuit Court of Appeals issued an order and opinion on April 16 that blocks enforcement of the Save Women’s Sports Bill on grounds that the law violated the constitutional rights of the plaintiff, a 13-year-old eighth-grade track athlete who was born male but identifies as female.

The measure was signed into law by West Virginia Gov. Jim Justice in 2021. It was quickly challenged in court by the American Civil Liberties Union (ACLU), which brought the lawsuit on behalf of Becky Pepper-Jackson, the transgender student who was prevented from joining the girls’ cross-country team.

The ACLU argued that Becky Pepper-Jackson (referred to in court filings by the initials B.P.J.), who was diagnosed with gender dysphoria in 2019 and was treated with puberty blockers followed by “gender-affirming” hormone therapy, never underwent male puberty and so doesn’t have any athletic advantage over naturally-born girls.

The group claimed that the West Virginia law discriminated against children like B.P.J. “on the basis of sex and transgender status” in violation of the U.S. Constitution and Title IX, including the Equal Protection Clause of the Fourteenth Amendment, which prohibits a state from denying a person within its jurisdiction “equal protection of the laws.”

Legal Wrangling

Initially, Southern District of West Virginia Judge Joseph R. Goodwin, a Clinton appointee, issued a preliminary injunction in July 2021, temporarily blocking the transgender sports ban. However, Judge Goodwin later reversed this decision, ruling that the law is “constitutionally permissible.”

Judge Goodwin noted in his 21-page order that, because not all transgender girls take puberty blockers like B.P.J., a law that protects female sports and athletes based on biological sex classifications is valid because “biological males generally outperform females athletically” and the government has an important interest in “providing equal athletic opportunities for females.”

However, upon appeal, the 4th Circuit reinstated Judge Goodwin’s initial injunction, temporarily blocking the law once again. That decision was then appealed to the U.S. Supreme Court, which refused to lift the block and reinstate the transgender sports ban, allowing B.P.J. to compete on the girls’ team while effectively kicking the case back to the 4th Circuit for a final decision.

The 4th Circuit heard oral arguments in the case in October 2023 and issued its final decision on April 16, 2024, reversing the transgender sports ban and ruling that it violates Title IX protections.

“The Act’s sole purpose—and its sole effect—is to prevent transgender girls from playing on girls teams,” 4th Circuit Judge Toby Heytens, a Biden appointee, wrote in the 68-page ruling.

The judge argued that offering B.P.J. a choice between participating on boys’ teams in line with their biological sex “is no real choice at all” because of all the transgender treatments B.P.J. had undertaken and it’s unreasonable to expect a reversal of these changes.

Judge Heytens said that West Virginia’s transgender sports ban amounted to sex-based discrimination that violates Title IX protections.

“By participating on boys teams, B.P.J. would be sharing the field with boys who are larger, stronger, and faster than her because of the elevated levels of circulating testosterone she lacks,” the judge wrote. “The Act thus exposes B.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.”

The ACLU hailed the ruling while West Virginia Attorney General Patrick Morrisey, a Republican, vowed to fight it, setting the stage for another potential appeal to the U.S. Supreme Court.

Reactions

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

“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,” he continued. “We know the law is correct and will use every available tool to defend it.”

“We remain confident in the merits of our defense. We are resolute in protecting opportunities for women and girls in sports because when biological males win in a women’s event—as has happened time and again—female athletes lose their opportunity to shine,” he added.

“This is a tremendous victory for our client, transgender West Virginians, and the freedom of all youth to play as who they are,” Joshua Block, Senior Staff Attorney for the ACLU’s LGBTQ & HIV Project, 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,“ Mr. Block added. ”This case is fundamentally about the equality of transgender youth in our schools and our communities and we’re thankful the Fourth Circuit agreed.”