State Attorney General Patrick Morrisey says his team will once again focus its efforts on the U.S. 4th Circuit Court of Appeals where the state’s transgender sports law is being argued after the U.S. Supreme Court denied Morrisey’s emergency request to have injunction that puts the law on hold removed.
“This is a procedural setback but we remain very confident in the merits of our case and we’re going to go through the process,” Morrisey said Friday during an appearance on MetroNews “Talkline.”
HB 3293, approved by the legislature in 2021, 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.
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 in 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.”
But the U.S. Court of Appeals for the Fourth Circuit, in a recent 2-1 ruling, reinstated the injunction. Morrisey asked the U.S. Supreme Court for an emergency ruling to overturn the reinstated injunction. The High Court refused in a decision announced Thursday which would allow Pepper to continue to compete.
Morrisey called the Supreme Court decision a “temporary setback.”
“I think we’re right on the merits,” Morrisey said. “Our Save Women’s Sports Act is consistent with Title IX and consistent with the constitutional protections afforded.”
Lambda Legal, the American Civil Liberties Union, and the ACLU of West Virginia issued a joint statement Thursday.
“We are grateful that the Supreme Court today acknowledged that there was no emergency and that Becky should be allowed to continue to participate with her teammates on her middle school track team, which she has been doing without incident for three going on four seasons, as our challenge to West Virginia’s onerous trans youth sports ban makes its way through the courts. This was a baseless and cruel effort to keep Becky from where she belongs — playing alongside her peers as a teammate and as a friend.”
