MORGANTOWN – State Attorney General Patrick Morrisey announced on Thursday that he is applying to the U.S. Supreme Court to vacate a preliminary injunction against enforcing the 2021 transgender athlete bill.
The bill, HB 3293, reflected the Legislature’s sense that “the people wanted basic fairness in participation of sports,” he said during a press conference. He is asking to have the injunction vacated pending appeal to the Supreme Court.
HB 3293 defines “female” as an individual whose biological sex determined at birth is female; and “male” as an individual whose biological sex determined at birth is male. Women and girls are biological females, and men and boys are biological male.
It says, “Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”
After the bill was signed into law, the American Civil Liberties Union filed suit in May 2021 on behalf of a transgender female, Becky Pepper-Jackson, of Bridgeport Middle School, alleging the bill violates Pepper-Jackson’s rights under the 14th Amendment and Title IX.
U.S. District Judge Joseph Goodwin, of the Southern District of West Virginia, issued a preliminary injunction against the bill in July 2021, but then this past January dissolved the injunction.
He wrote, “I have no doubt that H.B. 3293 aimed to politicize participation in school athletics for transgender students. Nevertheless, there is not a sufficient record of legislative animus. Considering the law under the intermediate scrutiny standard, I find that it is substantially related to an important government interest.”
Goodwin also wrote, “While some females may be able to outperform some males, it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes. This is not an overbroad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes.”
But the U.S. Court of Appeals for the Fourth Circuit, in a recent 2-1 ruling, reinstated the injunction. Morrisey plans to appeal that ruling.
He said the Fourth Circuit offered no explanation for its ruling. Federal courts should not enjoin legislation without saying why, and BPJ and the ACLU are not likely to succeed on the merits of the case – which includes 50 docket entries and 3,000 pages of testimony supporting the state’s case.
The district court, in December 2021, allowed West Virginia State University female soccer player Lainey Armistead to intervene in the case in support of the state. She is represented by Alliance Defending Freedom, and ADF attorney Rachel Csutoros is a co-counsel in the current action.
Csutoros said during the press conference that Armistead got involved “to make sure no woman would suffer and be forced to compete against a male in her sport.” She also said, “This is a historic moment for all female athletes” as Women’s History Month progresses.
Sartoris said 61 other female athletes are expected to support the case, and Morrisey said a coalition of other states is also expected to join.
The ACLU and its West Virginia chapter, along with Lambda Legal, issued a statement following Morrisey’s announcement. It said Becky is a 12-year-old girl who joined the girls’ track team with no issues from her teammates. She has been receiving puberty-delaying medications and gender-affirming hormones.
“It is unconscionable that the West Virginia attorney general wants to prevent Becky from participating in sports with her peers,” the union said. “West Virginia refuses to address the facts of Becky’s case and instead talks about elite athletic competitions that have nothing to do with the facts here.”
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