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
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.
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
College & Workforce Readiness Webinar
Climb: A New Framework for Career Readiness in the Age of AI
Discover practical strategies to redefine career readiness in K–12 and move beyond credentials to develop true capability and character.
Content provided by Pearson

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 Nation's Largest Teachers' Union Sues Education Department Over DEI Threats
It's the second lawsuit to challenge the guidance that seeks to end diversity, equity, and inclusion in schools.
4 min read
Education Secretary Linda McMahon, left, greets Sen. Katie Britt, R-Ala., before President Donald Trump addresses a joint session of Congress at the Capitol in Washington, Tuesday, March 4, 2025.
Education Secretary Linda McMahon, left, greets Sen. Katie Britt, R-Ala., before President Donald Trump addresses a joint session of Congress at the Capitol in Washington, Tuesday, March 4, 2025. The National Education Association and ACLU are suing the U.S. Department of Education over its letter seeking to end race-based programming in schools.
Ben Curtis/AP
Law & Courts Supreme Court Won't Take Up Case on Schools' Bias-Response Policies
Over the dissents of two justices, the U.S. Supreme Court declined to weigh a case about educational institutions' bias-reporting policies.
3 min read
Students walk to class on the Indiana University campus, Oct. 14, 2021, in Bloomington, Ind.
The U.S. Supreme Court on March 3 declined to take up a challenge to the bias-response policy of Indiana University, including at its Bloomington campus shown above.
Darron Cummings/AP
Law & Courts Schools May Get Relief From Overcharges After Supreme Court Ruling on E-Rate
The ruling potentially bolsters schools that have been overcharged by telecommunications companies.
5 min read
The Supreme Court building is seen on June 13, 2024, in Washington.
The U.S. Supreme Court, seen here on June 13, 2024, on Feb. 21 issued a ruling that means private whistleblowers may pursue lawsuits alleging fraud under the federal E-rate program that provides internet connections to schools.
Mark Schiefelbein/AP
Law & Courts Parents Lose Appeal Over School’s Gender Identity Notification Policy
A federal appeals court ruled for a district in the case of a 9th grader who did not want officials to notify parents of gender transition.
6 min read
A person holds up LGTBQ+ pride flags during the Pride Parade in New York, June 24, 2018.
LGTBQ+ pride flags during the Pride Parade in New York City in 2018. A federal appeals court has rejected a parental rights claim against a Massachusetts district's policy of supporting students' gender transitions.
Steve Luciano/AP