At what point will Attorney General Patrick Morrisey stop picking on children?
He is asking the U.S. Supreme Court to review the U.S. 4th Circuit Court of Appeals’ ruling in B.P.J. v. West Virginia State Board of Education. The case centers on the 2021 law (HB 2393) barring transgender females from playing in women’s sports by specifying that youth must play on the team matching their sex at birth, not their gender identity. Becky Pepper-Jackson, a 13-year-old transgender girl from Bridgeport, has been in and out of courts for the last three years, challenging the law that tried to keep her from running track on her school’s track team.
This case has gone through several rounds of litigation already. In July 2021, a preliminary injunction prevented HB 2393 from being enforced. In January 2023, a U.S. District Court gave summary judgment to the West Virginia BOE, allowing the trans-athlete ban to go into effect. A month later, the U.S. 4th Circuit Court of Appeals granted a stay motion pending appeal that allowed Pepper-Jackson to join her middle school track team. In April of this year, the court of appeals ruled narrowly in Pepper-Jackson’s favor.
Emphasis on “narrowly.” The court decided that because Pepper-Jackson had identified as a female for five years, played only on girls’ teams and had been taking medication to block male puberty and undergo female puberty, she did not have any unfair advantage over her biologically female classmates. It would be unfair to exclude her from sports entirely, and forcing her to play on boys’ teams “would expose [her] to the same risk of unfair competition — and, in some sports, physical danger — from which the defendants claim to be shielding cisgender girls,” since she would be “sharing the field with boys who are larger, stronger, and faster than her because of the elevated levels of circulating testosterone she lacks.”
But the court also said its ruling did not prevent the state from having separate boys’ and girls’ teams, nor did it mean federal law forces the state “to allow every transgender girl to play on girls teams.”
The question of transgender athletes is a difficult one. There is some research that suggests that before puberty, there is very little difference between girls’ and boys’ physical abilities. There is also some — sometimes contradictory — research about if and when the physical differences occur and how long someone must undergo hormone treatments to undo any potential advantage. Given the limited body of knowledge we have at the moment, the 4th Circuit Court of Appeals presented a compromise that allows the state Board of Education to consider transgender athletes’ eligibility based on the specific facts of each case.
This ruling does not settle the question one way or another. Rather, it acknowledges the complexity of the issue at hand.
Often, though, people respond to this question not with a nuanced analysis of existing evidence, but with a gut reaction to what they perceive as “fair” and/or “natural.” And that is what Morrisey is banking on.
He knows that this is an issue that riles up a certain portion of the Republican Party’s base, and by continuing this case, he gets free-to-him campaign fodder at West Virginia taxpayers’ expense. He gets to exploit his position of power by feeding into people’s fears and appealing to a sense of injustice. Not only that, but taking his case to the Supreme Court will elevate his national profile — something he can leverage when he undoubtedly makes another run for national office, especially if the conservative Supreme Court rules in his favor. Because that’s what this is ultimately about: not girls or sports or fairness, but fueling Morrisey’s campaign. And he seems perfectly content to step on our children as he climbs his way up the political ladder.
