Law & Courts

West Virginia Law Barring Transgender Girls From School Sports Upheld by Federal Judge

By Mark Walsh — January 06, 2023 4 min read
Judge gavel on law books with statue of justice and court government background. concept of law, justice, legal.
  • Save to favorites
  • Print

In the second defeat for transgender rights in schools in a week, a federal district judge upheld a West Virginia law that bars transgender athletes from competing in girls’ school sports in the state.

The Jan. 5 ruling by Judge Joseph R. Goodwin of Charleston, W. Va., is an about-face from the his 2021 decision blocking the law at a preliminary stage, permitting a then-11-year-old transgender girl to compete in girls’ cross country and track.

The girl, Becky Pepper-Jackson, has said: “I just want to play.” Her lawsuit challenges the statute as a violation of her 14th Amendment right to equal protection of the law and of Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded educational programs.

In his 2021 decision, Goodwin said Pepper-Jackson was being excluded from school athletics “on the basis of sex” in likely violation of the equal-protection clause and Title IX.

But his new decision this week in B.P.J. v. West Virginia State Board of Education, on motions for summary judgment by various parties in the case, 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.”

The 2021 Save Women’s Sports act defines “female” as “an individual whose biological sex determined at birth is female.”

Goodwin said the legislature was motivated by the widely discussed situation in Connecticut where two transgender girls had defeated cisgender female athletes in some track competitions. (That led to a lawsuit by the cisgender girls that was recently rejected by a federal appeals court, which upheld the transgender-inclusive rules of Connecticut’s school sports governing body.)

“Acting to prevent transgender girls, along with all other biological males, from playing on girls’ teams is not unconstitutional if the classification is substantially related to an important government interest,” Goodwin said. “The fact is … that a transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males. And biological males generally outperform females athletically.”

West Virginia “is permitted to legislate sports rules on this basis because sex, and the physical characteristics that flow from it, are substantially related to athletic performance and fairness in sports,” the judge said.

State may have adopted a ‘solution in search of a problem,’ judge says

Goodwin rejected Pepper-Jackson’s arguments that the availability of puberty blockers used in the gender transition process put transgender girls in the same legal definition as cisgender girls.

The judge, as he had earlier, said Pepper-Jackson was deserving of respect and he suggested the West Virginia legislature had provided a “solution in search of a problem” since no transgender girl had sought to participate in female sports in the state before it passed the law. But there was insufficient evidence that the state legislature had acted with animus towards transgender people in passing the law, he said.

“While the record before me does reveal that at least one legislator held or implicitly supported private bias against, or moral disapproval of, transgender individuals, it does not contain evidence of that type of animus more broadly throughout the state legislature,” Goodwin said.

West Virginia Attorney General Patrick Morrissey, a Republican, whose office defended the state law, said in a statement, “This is not only about simple biology, but fairness for women’s sports, plain and simple. Opportunities for girls and women on the field are precious and we must safeguard that future. Protecting these opportunities is important, because when biological males compete in a women’s event, women and girls lose their opportunity to shine.”

Pepper-Jackson, who is now 12, is being represented by the gay-rights organization Lambda Legal, the American Civil Liberties Union of West Virginia, and the law firm Cooley LLP.
“The District Court’s ruling is disappointing both for its harmful conclusion and its spurious argument,” the groups said in a joint statement.” The fact is the equal and fair participation of transgender youth takes nothing away from cisgender youth and helps to maintain a level playing field for all youth.”

The legal groups were considering their next steps, the statement said. Pepper-Jackson has also been supported by President Joe Biden’s administration, which filed a statement of interest in the case.

The West Virginia decision comes barely a week after a federal appeals court upheld a Florida school district’s policy of separating restrooms by “biological sex” and barring transgender students from using facilities consistent with their gender identity.

That 7-4 decision on Dec. 30, by the full U.S. Court of Appeals for the 11th Circuit, in Atlanta, went counter to three other federal appeals courts that have read either the equal-protection clause or Title IX (or both) to support transgender-inclusive school policies.

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Student Achievement Webinar
How To Tackle The Biggest Hurdles To Effective Tutoring
Learn how districts overcome the three biggest challenges to implementing high-impact tutoring with fidelity: time, talent, and funding.
Content provided by Saga Education
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Student Well-Being Webinar
Reframing Behavior: Neuroscience-Based Practices for Positive Support
Reframing Behavior helps teachers see the “why” of behavior through a neuroscience lens and provides practices that fit into a school day.
Content provided by Crisis Prevention Institute
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Mathematics Webinar
Math for All: Strategies for Inclusive Instruction and Student Success
Looking for ways to make math matter for all your students? Gain strategies that help them make the connection as well as the grade.
Content provided by NMSI

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Oxford School Shooter's Parents Were Convicted. Holding District Liable Could Be Tougher
The conviction of parents in the Oxford, Mich., case expanded the scope of responsibility, but it remains difficult to hold schools liable.
12 min read
Four roses are placed on a fence to honor Hana St. Juliana, 14, Madisyn Baldwin, 17, Tate Myre, 16, and Justin Shilling, 17, the four teens killed in last week's shooting, outside Oxford High School in Oxford, Mich., on Tuesday, Dec. 7, 2021.
Four roses are placed on a fence outside Oxford High School in Oxford, Mich., honor Hana St. Juliana, 14, Madisyn Baldwin, 17, Tate Myre, 16, and Justin Shilling, 17, the four teens killed in the Nov. 30, 2021, shooting at the school.
Jake May/The Flint Journal via AP
Law & Courts Oklahoma Supreme Court Weighs 'Test Case' Over the Nation's First Religious Charter School
The state attorney general says the Catholic-based school is not permitted under state law, while supporters cite U.S. Supreme Court cases.
5 min read
Oklahoma Attorney General Gentner Drummond is pictured Wednesday, Feb. 1, 2023, during an interview in Oklahoma City.
Oklahoma Attorney General Gentner Drummond, pictured in February, argued April 2 before the state supreme court against the nation's first religious charter school.
Sue Ogrocki/AP
Law & Courts When Blocking Social Media Critics, School Officials Have Protections, Supreme Court Says
The court said public officials' own pages may be "state action," but only when they are exercising government authority.
6 min read
An American flag waves in front of the Supreme Court building on Capitol Hill in Washington, on Nov. 2, 2020.
An American flag waves in front of the Supreme Court building on Capitol Hill in Washington, on Nov. 2, 2020.
Patrick Semansky/AP
Law & Courts Oklahoma Nonbinary Student's Death Shines a Light on Families' Legal Recourse for Bullying
Students facing bullying and harassment from their peers face legal roadblocks in suing districts, but settlements appear to be on the rise
11 min read
A photograph of Nex Benedict, a nonbinary teenager who died a day after a fight in a high school bathroom, is projected during a candlelight service at Point A Gallery, on Feb. 24, 2024, in Oklahoma City. Federal officials will investigate the Oklahoma school district where Benedict died, according to a letter sent by the U.S. Department of Education on March 1, 2024.
A photograph of Nex Benedict, a nonbinary teenager who died a day after a fight in a high school restroom, is projected during a candlelight service at Point A Gallery, on Feb. 24, 2024, in Oklahoma City. Federal officials will investigate the Oklahoma school district where Benedict died, according to a letter sent by the U.S. Department of Education on March 1, 2024.
Nate Billings/The Oklahoman via AP