Law & Courts

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

By Mark Walsh — January 06, 2023 4 min read
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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.

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