West Virginia’s Save Women’s Sports Act specifies that sports teams for girls and women “shall not be open to students of the male sex.” That prohibits a transgender girl from participating on the girl’s team.
Last week’s 2-1 decision by the Fourth Circuit Court of Appeals cast that law into question. It cleared the way for a Bridgeport Middle School transgender girl to continue to participate on her school’s track team.
The ruling did not invalidate West Virginia’s law against such participation, but it did determine that the law unfairly discriminated against the student, Becky Pepper-Jackson, under federal Title IX. That law prohibits sex discrimination at schools that receive federal funding.
So, what does all this mean going forward?
West Virginia coaches and athletic directors are left in limbo. They could follow the West Virginia law and block transgender participation, but they might get sued. Or they could allow a transgender girl to play on the girl’s team and risk upsetting athletes and their parents. Recently, five girls on the Lincoln Middle School track team protested the participation of Pepper-Jackson in the shot put event.
West Virginia Attorney General and Republican gubernatorial candidate Patrick Morrisey has said he will appeal the decision.
Meanwhile, the U.S. Department of Education has proposed changes to Title IX addressing transgender eligibility in athletics. Here are key takeaways from the proposal:
Schools would be prohibited from categorically banning transgender students from participating on sports teams consistent with their gender identity.
However, the proposed rule “would allow schools flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injuries.”
Elementary school children would generally be able to participate on school sports teams “consistent with their gender identity.”
However, schools would be permitted to “limit participation of some transgender students” at the high school level to ensure fairness in competition.
These proposed rules would provide guidance, but they may never be finalized. The Washington Post reports the Biden administration has delayed their release until after the election.
“Folks close to Biden have made the political decision to not move on the athletics (regulation) pre-election,” an administration source told the Post. “It seems to be too much of a hot topic.”
That is probably a wise political move, but it is no help for educators, coaches, administrators, policy makers and parents who are all trying to navigate this complicated terrain.
