Federal appeals court judges have ruled that West Virginia’s law forbidding the participation of transgender athletes on school sports teams violates the rights of a middle school track and cross-country runner, upending an earlier district court ruling.
The case was decided Tuesday by a three-judge panel of the Fourth Circuit Court of Appeals, which covers the area that includes West Virginia. In the majority were U.S. appeals judges Pamela Harris and Toby Heytens. Dissenting was their colleague, Steven Agee, who said the ruling went too far.
“The question before us is whether the Act may lawfully be applied to prevent a 13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade from participating in her school’s cross-country and track teams,” Judge Heytons wrote in the majority opinion. “We hold it cannot.”
Arguments were heard by the appeals court in October.
The majority ruling was careful to define what it does not do.
“We do not hold that government officials are forbidden from creating separate sports teams for boys and girls or that they lack power to police the line drawn between those teams. We also do not hold that Title IX requires schools to allow every transgender girl to play on girls teams, regardless of whether they have gone through puberty and experienced elevated levels of circulating testosterone.”
But the majority concluded that the application of West Virginia’s law would discriminate against middle schooler Becky Pepper-Jackson only because of her transgender status, disregarding her puberty blocking treatment that held off the effects of testosterone or the non-contact nature of running sports.
Specifically, the appeals judges ordered the lower court to enter summary judgment for Pepper-Jackson on her specific claim that her rights have been violated under federal Title IX, which prohibits sex-based discrimination in any school or education program that receives federal funds.
The appeals court majority also ordered the district court to vacate a summary judgment ruling that relates to the Constitution’s equal protection clause.
ACLU West Virginia praised the ruling. Attorney General Patrick Morrisey was critical.
In 2021, West Virginia joined dozens of states placing restrictions on transgender athletes’ participation on sports teams.
House Bill 3293 defines male and female “based solely on the individual’s reproductive biology and genetics at birth.” It says “any student aggrieved by a violation of this section may bring an action” against a county board of education or college “alleged to be responsible for the alleged violation” — intended to allow lawsuits over anyone contending a transgender athlete was gaining advantage in sports.
Lawyers for Pepper-Jackson — or B.P.J., as she is identified in court filings — challenged the law under Title IX policy and the Constitution’s Equal Protection Clause.
Early last year, U.S. District Judge Joseph Goodwin of the Southern District of West Virginia upheld West Virginia’s law.
“The question before the court is whether the legislature’s chosen definition of ‘girl’ and ‘woman’ in this context is constitutionally permissible. I find that it is,” Goodwin wrote last year in a 23-page ruling that also found the state’s law complies with federal Title IX.
His ruling was appealed to the Fourth Circuit, where the panel’s majority largely disagreed.
Pepper-Jackson, according to filings in the case, was born male but identified as a girl from a young age. By third grade, she was living as a girl at home and told her mother and father she did not want to keep going to school dressed as a boy.
More recently, she was diagnosed with gender dysphoria and had been receiving puberty-delaying treatment for almost a year when West Virginia passed the bill affecting transgender athletes.
Her federal lawsuit was aimed at being able to participate on the cross-country and track teams
at Bridgeport Middle School.
The appeals panel took note of the many steps Pepper-Jackson had taken in her identification as a girl, including the use of puberty-blocking medication. By doing so, her body has not gone through the effects of puberty associated with increased strength and speed, the panel concluded.
“Because B.P.J. has never felt the effects of increased levels of circulating testosterone, the fact that those who do benefit from increased strength and speed provides no justification— much less a substantial one — for excluding B.P.J. from the girls cross-country and track teams,” according to the majority opinion.
