West Virginia transgender sports ban discriminates against teen athlete, appeals court says
>> West Virginia’s transgender sports ban violates the rights of a teen athlete under Title IX, the federal civil rights law that prohibits sex-based discrimination in schools, an appeals court ruled Tuesday.
The 4th U.S. Circuit Court of Appeals ruled 2-1 that the law cannot be applied to a 13-year-old 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 had blocked the state’s bid to kick Becky Pepper Jackson off her middle school cross country and track and field teams 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.
The court ruled in favor of the American Civil Liberties Union, its West Virginia chapter and LGBTQ interest group Lambda Legal. They sued the state, county boards of education and their superintendents in 2021 after Republican Gov. Jim Justice signed the bill into law.
“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.
The court noted that Jackson has been living as a girl for over 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 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.
While the ruling makes clear that the law is discriminatory, ACLU-West Virginia spokesperson Billy Wolfe said in a statement, “as far as we know, our client is the only child currently impacted by this law. If others find themselves in this situation, we encourage them to contact the ACLU-WV legal team.”
West Virginia Attorney General Patrick Morrisey was “deeply disappointed” in the decision, the Republican said. His office said except for the specific case decided Tuesday, the ban remains in place.
“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,” Morrisey said. “We know the law is correct and will use every available tool to defend it.”