Law & Courts

‘I Just Want to Play.’ Judge Halts W. Va. Law Barring Transgender Girls From Girls’ Sports

By Mark Walsh — July 22, 2021 3 min read
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A federal district judge has blocked a West Virginia law that bars transgender athletes from competing in girls’ school sports in the state, ruling that it is likely unconstitutional as it applies to an 11-year-old transgender girl who hopes to participate on her middle school cross-country and track teams.

“At this point, I have been provided with scant evidence that this law addresses any problem at all, let alone an important problem,” U.S. District Judge Joseph R. Goodwin of Charleston, W. Va., wrote in his July 21 opinion in B.P.J. v. West Virginia State Board of Education, granting a preliminary injunction against the “Save Women’s Sports Bill.”

The law was challenged by Becky Pepper-Jackson, who was assigned male at birth but identified as a girl by 3rd grade, as well as by her mother, Heather Jackson. Pepper-Jackson hopes to participate in middle school sports in the Harrison County, W.Va., school district this fall. According to the suit, however, the school principal in May informed the family that Pepper-Jackson would not be allowed to join the girls’ teams because of the measure signed into law April 28 by Gov. Jim Justice, a Republican.

Goodwin held that the law likely violates the 14th Amendment’s equal-protection clause with respect to Pepper-Jackson. (He said the question of whether the law is unconstitutional on its face would have to be determined at a later stage of the litigation.)

The judge also ruled that the West Virginia law likely violates Title IX of the Education Amendments of 1972, the federal law that bars sex discrimination in federally funded schools.

Goodwin said Pepper-Jackson was being excluded from school athletics “on the basis of sex,” and that her case was supported by recent decisions by the U.S. Supreme Court and the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va. (West Virginia is part of the 4th Circuit.)

Judge Had ‘Little Difficulty’ Finding Harm in W.Va. Law

The judge cited the Supreme Court’s 2020 decision in Bostock v. Clayton County, Ga., which held that Title VII of the Civil Rights Act of 1964 bars sex discrimination in the workplace based on sexual orientation and gender identity. And he cited the 4th Circuit’s final ruling last year in favor of Gavin Grimm, a Virginia transgender student who was excluded by his school district from using the boys’ restroom.

Goodwin said he had “little difficulty” finding that Pepper-Jackson is harmed by the West Virginia law.

“All other students in West Virginia secondary schools—cisgender girls, cisgender boys, transgender boys, and students falling outside of any of these definitions trying to play on the boys’ teams—are permitted to play on sports teams that best fit their gender identity,” the judge said. “Under this law, [Pepper-Jackson] would be the only girl at her school, as far as I am aware, that is forbidden from playing on a girls’ team and must join the boys’ team.”

Pepper-Jackson and her mother are represented by the American Civil Liberties Union and Lambda Legal, and they drew support from a court filing in June by President Joe Biden’s administration.

“I am excited to know that I will be able to try out for the girls’ cross-country team and follow in the running shoes of my family,” Pepper-Jackson said in a statement released by her lawyers. “It hurt that the state of West Virginia would try to block me from pursuing my dreams. I just want to play.”

There was no immediate reaction from state officials. Gov. Justice, in signing the bill, said it wasn’t one of his priorities but that allowing transgender girls to participate in female sports “would impose an unfair disadvantage on the girls.”

The West Virginia law is the second one restricting transgender students in sports to be blocked by a federal court. A similar Idaho law was blocked last year, in a ruling that is under review by the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

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