Law & Courts

11-Year-Old Challenges West Virginia Law Barring Transgender Girls From Female Sports

By Mark Walsh — May 26, 2021 4 min read
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An 11-year-old transgender girl and her mother filed a lawsuit Wednesday challenging a new West Virginia law that bars transgender athletes from competing in female sports in middle schools, high schools, and colleges in the state.

Becky Pepper-Jackson, who was assigned male at birth but identified as a girl by 3rd grade, hopes to participate in cross country and track when she enters middle school in the Harrison County, W.Va., school district this fall. According to her suit, however, the school principal last week informed Heather Jackson, the girl’s mother, that Pepper-Jackson would not be allowed to join the girls team because of the new state law, known as H.B. 3293.

The measure was signed into law on April 28 by Gov. Jim Justice, a Republican. Justice is reported to have said that he would “proudly” sign the bill despite prospects that the National Collegiate Athletic Association might keep any national championships out of the state. The lawsuit quotes Justice as saying the bill was not one of his own priorities.

“It wasn’t my bill,” the governor said in an interview on MSNBC. “I think we only have 12 kids maybe in our state that are transgender-type kids. … I sign hundreds of bills.” He suggested that allowing transgender girls to participate in female sports “would impose an unfair disadvantage on the girls.”

The state is one of at least 10 to consider or adopt similar measures aimed at barring transgender girls and women from female sports participation. In early May, a federal appeals court heard arguments in a challenge to an Idaho law on the topic. A federal district judge had blocked the law as a violation of the 14th Amendment’s equal-protection clause.

The lawsuit challenging the West Virginia law is backed by the American Civil Liberties Union, Lambda Legal, and the law firm Cooley LLP. The suit is based on both the equal-protection clause and Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded education programs.

The bill as introduced would have required students to provide copies of their birth certificates reflecting their “sex at time of birth” in order to be admitted to public school at any level in West Virginia. It was amended during legislative consideration to define biological sex as “an individual’s physical form as a male or female based solely on the individual’s reproductive biology and genetics at birth.”

One co-sponsor of the measure, Delegate Margitta Mazzochi, said during debate that she did not “want all this mixing and matching” of “transgender children” with non-transgender children in “locker rooms.”

The measure also provides a cause of action for any student “aggrieved” by a violation of the statute to sue for injunctive relief and actual damages, as well as reasonable attorney’s fees and court costs.

The lawsuit argues that the West Virginia law excludes transgender girls based on their gender identity status, and not on any purported athletic advantages.

The new law “categorically bars any girl who is transgender from participating in girls’ sports without considering factors that have any correlation with athletic ability,” the suit says. “Under H.B. 3293, even girls like [Pepper-Jackson], who receive puberty-delaying treatment and never go through endogenous puberty, are prohibited from participating on girls’ sports teams.”

Pepper-Jackson began such puberty-delaying treatments last year, says the suit, which explains that girls in her situation don’t have any of the physical advantages of transgender girls who have circulating testosterone because they did not block puberty.

“I just want to run, I come from a family of runners,” Pepper-Jackson said in a statement released by the ACLU. “I know how hurtful a law like this is to all kids like me who just want to play sports with their classmates, and I’m doing this for them. Trans kids deserve better.”

The middle school principal told Pepper-Jackson’s mother that it would be confusing for the 11-year-old to participate on the boys’ track or cross-country teams because she presents as a girl, and thus he would have to inform everyone that she was transgender, the suit says. But in any event, Pepper-Jackson would not want to participate on the boys’ teams because she is a girl and doing so would undermine her treatment for gender dysphoria, the suit says.

“H.B. 3293 was prompted by unfounded stereotypes, false scientific claims, and baseless fear and misunderstanding of girls who are transgender,” the suit says.

The lawsuit, B.P.J. v. West Virginia State Board of Education, seeks legal declarations that the West Virginia law violates Title IX and the equal-protection clause, as well as nominal damages. The defendants include the state education board, the West Virginia Secondary School Activities Commission, and the Harrison County Board of Education.

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