The Supreme Court refused on April 6 to lift a federal appeals court order blocking West Virginia’s law preventing male athletes from playing on school sports teams designated for females.
Two conservative justices, Samuel Alito and Clarence Thomas, dissented from the court’s refusal to remove the injunction.
West Virginia enacted the Save Women’s Sports Act in 2021, which prevents students from competing in school sports other than under their birth sex.
West Virginia and other states have taken action to make sure women and girls continue to have access to school sports even as males who identify as females take spots on women’s sports teams. Idaho, Mississippi, Montana, Arkansas, Florida, and other states have also passed legislation that keeps men from competing in women’s sports.
A lawsuit was brought by the American Civil Liberties Union (ACLU) on behalf of Becky Pepper-Jackson, a 12-year-old who was born male but now identifies as female. Pepper-Jackson was prevented from joining a girls’ cross-country team. The ACLU argues that the statute violates the child’s rights under the Equal Protection Clause in the 14th Amendment to the Constitution and Title IX, a federal law that bans sex-based discrimination in education.
A federal district court temporarily blocked the state law in July 2021, and the state didn’t appeal that preliminary injunction for 1 1/2 years. The same court then changed course and ruled for the state and dissolved the injunction.
Then, a divided panel of the U.S. Court of Appeals for the 4th Circuit entered an injunction, putting the state law on hold. The appeals court didn’t explain its decision.
This is apparently the first time the Supreme Court has ruled in a case involving restrictions on the participation of transgender athletes in collegiate sports, but it isn’t a ruling on the merits of the lawsuit itself, which remains pending before the 4th Circuit. The Supreme Court could revisit the matter in the future.
The emergency application in State of West Virginia v. B.P.J., court file 22A800, was docketed by the high court on March 13. The application, prepared by West Virginia Attorney General Patrick Morrisey, a Republican, was referred to Chief Justice John Roberts, who oversees the 4th Circuit.
Roberts referred the application to the full court, which issued its new unsigned order late on April 6 without explaining why or issuing a formal opinion.
The conservative justice wrote that he would grant the state’s application because, among other things, “enforcement of the law at issue should not be forbidden by the federal courts without any explanation.”
Although West Virginia allowed the district court’s injunction “to go unchallenged for nearly 18 months before seeking emergency relief from a second, identical injunction,” it’s “a wise rule in general that a litigant whose claim of urgency is belied by its own conduct should not expect discretionary emergency relief from a court.”
But the circumstances here weigh against keeping the injunction in place, he wrote.
The fact that a divided 4th Circuit “enjoined a duly enacted state law on an important subject without a word of explanation,” even though the district court “granted summary judgment to the State based on a fact-intensive record” means “the State is entitled to relief.”
“If we put aside the issue of the State’s delay in seeking emergency relief and if the District Court’s analysis of the merits of this case is correct, the generally applicable stay factors plainly justify granting West Virginia’s application,” Alito wrote.
The Alliance Defending Freedom (ADF), which supports the state law, was disappointed by the Supreme Court’s decision.
ADF senior counsel Christiana Kiefer said the new decision “didn’t end the case.”
“While we hoped the Supreme Court would lift the injunction that the 4th Circuit imposed—with no explanation—on West Virginia’s women’s sports law, we remain committed to protecting female athletes by continuing to litigate this case in the court of appeals, and across the country through other lawsuits defending women’s sports,” Kiefer said in a statement provided to The Epoch Times.
“Every woman deserves the respect and dignity that comes with having an equal opportunity to excel and win in athletics. Sports underscore the inherent biological differences between the sexes.
“When society and the law try to ignore reality, people get hurt. In sports, it’s women and girls who pay the price. Thankfully, a growing number of states are stepping up to protect women’s athletics. Right now, 20 states have enacted laws that protect women and girls from having to compete against males, and polls show that a majority of Americans agree that the competition is no longer fair when males are permitted to compete in women’s sports.”
The child’s counsel of record, Kathleen Roberta Hartnett of San Francisco, didn’t respond by press time to a request by The Epoch Times for comment.
