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
Artificial Intelligence Webinar
Managing AI in Schools: Practical Strategies for Districts
How should districts govern AI in schools? Learn practical strategies for policies, safety, transparency, as well as responsible adoption.
Content provided by Lightspeed Systems
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
Reading & Literacy Webinar
Unlocking Success for Struggling Adolescent Readers
The Science of Reading transformed K-3 literacy. Now it's time to extend that focus to students in grades 6 through 12.
Content provided by STARI
Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and K-12 education jubs at the EdWeek Top School Jobs virtual career fair.

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 Opinion What the Supreme Court Case on LGBTQ+ Books Reminds Us About Parents’ Rights
Regardless of which side wins Mahmoud v. Taylor, we have a big problem.
Jamie Kudlats & Christopher D. Thomas
5 min read
Man and woman waiting around speech bubble hole
E+/Getty
Law & Courts Retired Justice Souter, Advocate for Civics and Church-State Split, Dies at 85
Retired Justice David Souter, who wrote Supreme Court opinions on student strip searches and government aid to religion, has died.
4 min read
Retired Supreme Court Justice David Souter smiles during a new lecture series titled, "Constitutionally Speaking" on Sept. 14, 2012 in Concord, N.H. Souter spoke to more than 1,300 who packed a small theater to hear him.
Retired U.S. Supreme Court Justice David H. Souter, pictured participating a Sept. 14, 2012, lecture series on the U.S. Constitution in Concord, N.H., died May 8, 2025.
Jim Cole/AP
Law & Courts Supreme Court Appears Open to Religious Charter School
The U.S. Supreme Court grappled with whether charter schools are public schools and whether the Constitution permits a religious charter.
7 min read
Supporters of charter schools rally outside of the Supreme Court on April 30, 2025, in Washington.
Supporters of religious charter schools rally outside of the U.S. Supreme Court on April 30, 2025, in Washington.
Mark Schiefelbein/AP
Law & Courts Supreme Court Poised to Back Student in Key Disability-Rights Case
The U.S. Supreme Court considered what liability standard should apply for cases brought by students under two key federal disability laws.
6 min read
The Tharpe family, pictured outside the U.S. Supreme Court in Washington, on April 28, 2025.
Gina and Aaron Tharpe appear outside the U.S. Supreme Court on April 28 with their daughter Ava, who has a severe form of epilepsy. The court is weighing what liability standard should apply to the suit for damages they filed against their school district.
Mark Walsh/Education Week