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Law & Courts

U.S. Supreme Court Refuses to Reinstate West Virginia’s Transgender Athlete Ban

By Mark Walsh — April 06, 2023 4 min read
Hundreds of students carry signs and walk out of school on Transgender Day of Visibility outside Omaha Central High School on March 31, 2023 in Omaha, Neb. Students are protesting LB574 and LB575 in the Nebraska Legislature, which would ban certain gender-affirming care for youth and would prevent trans youth from competing in girls sports, respectively.
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The U.S. Supreme Court on Thursday declined to reinstate—for now—a West Virginia law that bars transgender female athletes from competing in girls’ school sports, over the dissent of two of its most conservative members.

The case “concerns an important issue that this court is likely to be required to address in the near future,” Justice Samuel A. Alito Jr. wrote in a dissent joined by Justice Clarence Thomas. The issue, Alito said, is whether Title IX of the Education Amendments of 1972 or the 14th Amendment’s equal-protection clause prohibits a state “from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.”

Alito did not reveal his stance with regard to this case, West Virginia v. B.P.J. But he warned in a 2021 opinion that allowing transgender students to participate in sports “previously reserved for one sex” threatens to “undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to participate in sports.” (Thomas joined that Alito dissent in Bostock v. Clayton County, Ga., in which the court held that federal employment-discrimination law covered sexual orientation and gender identity.)

The high court’s rejection of the emergency request from West Virginia allows a lower court injunction in favor of a 12-year-old transgender student, Becky Pepper-Jackson, to participate in girls’ track this spring.

“We are grateful that the Supreme Court today acknowledged that there was no emergency and that Becky should be allowed to continue to participate with her teammates on her middle school track team,” said a joint statement from Lambda Legal and the American Civil Liberties Union of West Virginia.

New proposed rules for transgender sports eligibility under Title IX

The court’s action comes as transgender female participation in girls’ and women’s sports remains a major flashpoint. Some states have enacted bans, other legislatures are debating prohibitions, and other courts are considering pending cases.

On Thursday, President Joe Biden’s administration also announced that it is developing rules under Title IX to prohibit schools from categorically barring transgender students from joining teams that align with their gender identity, though it would allow them to be excluded from some competitive levels of sports.

In the West Virginia case, Pepper-Jackson challenged the 2021 Save Women’s Sports Act, which defines “female” as “an individual whose biological sex determined at birth is female.” A federal district judge had initially blocked the law but in January 2023 upheld it, if somewhat reluctantly. The judge held that it was “constitutionally permissible” for the West Virginia legislature to limit participation in school and college sports to classifications based on “biological sex.” Biological males generally outperform females athletically, the judge said, and thus the legislature was acting in a manner related to athletic performance and fairness in sports.

In February, a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., voted 2-1 to issue an injunction allowing Pepper-Jackson to compete while the merits of her appeal proceeded. The panel offered no reasoning for the decision.

That prompted West Virginia, joined by some intervening cisgender female athletes represented by Alliance Defending Freedom, a conservative Scottsdale, Ariz.-based legal organization, to ask the Supreme Court to get involved.

“Complete lack of analysis [by the 4th Circuit] is the first tell that something is amiss, as federal courts should not enjoin democratically passed legislation without at least providing a rationale,” the joint emergency application to throw out the injunction said.

Lambda Legal and the ACLU told the court that the law’s defenders had not appealed the 2021 injunction that briefly blocked it, and so it could hardly be an emergency to allow one transgender student to continue to participate in girls’ sports.

Alito, in his dissent to the court’s action denying the emergency application, focused on procedural considerations.

“Among other things, enforcement of the law at issue should not be forbidden by the federal courts without any explanation,” said Alito. He acknowledged that the state had not challenged the earlier injunction, but said that under the normal factors, the court would consider in deciding whether to block a lower-court injunction, “the state is entitled to relief.”

West Virginia Attorney General Patrick Morrissey, a Republican, said in a statement that the Supreme Court’s action “is a procedural setback, but we remain confident that when this case is ultimately determined on the merits, we will prevail.”

“We maintain our stance that this is a common sense law—we have a very strong case,” Morrissey added.

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