A three-judge federal appeals court panel ruled April 16 that West Virginia's law barring transgender female students from participating on female student sports teams violates federal law.
In a 2-1 decision, the 4th U.S. Circuit Court of Appeals panel held that a West Virginia law barring transgender girls from participating on girls' sports teams in public schools violates Title IX of the federal Education Amendments Act. The panel declined to rule on whether the law also violated the equal protection clause of the U.S. Constitution.
Josh Block, a senior staff attorney for the American Civil Liberties Union's National LGBTQ & HIV Project, called the panel decision a "tremendous victory for our client, transgender West Virginians, and the freedom of all youth to play as who they are."
The ACLU and Lambda Legal Defense and Education Fund filed the lawsuit on behalf of then 11-year-old middle school student Becky Pepper-Jackson just after West Virginia passed its bill in 2021 relating to "single-sex participation in interscholastic athletic events."
The law in West Virginia, similar to those in 22 other states, required that public secondary schools and universities bar any student identified as male at birth from participating in a sport designated for female students.
The law was due to go into effect in July 2021, but the ACLU and Lambda Legal filed the litigation, BPJ v. West Virginia State Board of Education, to challenge the law and prevent it from taking effect. West Virginia asked the U.S. Supreme Court last spring to vacate a temporary injunction from the 4th U.S. Circuit Court of Appeals. The Supreme Court declined to do so and, thus, prevented the anti-transgender law from taking effect until courts could assess its constitutionality. The high court's vote to keep the injunction in place was 7-2, with only Justices Clarence Thomas and Samuel Alito voting to vacate.
West Virginia Attorney General Patrick Morrisey, one of six Republicans vying for the party nomination for governor in May, has vowed to use "every available tool" to defend the law. The statement suggests he will almost certainly file for appeal to the full 4th Circuit bench or, perhaps, attempt to appeal directly to the U.S. Supreme Court.
BPJ v. West Virginia was brought on behalf of Pepper-Jackson, now 13, who has, since the age of 8, publicly identified as female and been taking medication to block male hormones. She has been participating in non-contact sports: cross country and track. Before the state passed the ban in 2021, it had a policy that allowed transgender students to participate on a sports team matching their gender identity as long as their school deemed it to be "fair" competition.
The 4th Circuit panel noted that both sides in the litigation agreed that "the most significant sex-based differences in athletic performance" are determined by each athlete's "levels of circulating testosterone."
"Larger amounts of circulating testosterone produce an increased ability to build muscle mass," wrote Judge Toby Heytens (a Biden appointee) for the majority. "And increased muscle mass, in turn, leads to greater strength and speed — two attributes relevant to most competitive sports."
Heytens noted that Jackson began treatment for gender dysphoria at an early enough age that she "never experienced elevated levels of circulating testosterone." And the appeals majority made note several times that Jackson challenged the West Virginia ban as it applied to her alone, not as it might apply to anyone else.
"Because [Pepper-Jackson] 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 [Jackson] from the girls cross country and track teams," said the decision.
"Because [Pepper-Jackson] can show both worse treatment based on sex and resulting harm, she has established each of the disputed requirements for a Title IX claim," stated the panel.
The 4th Circuit panel's decision reversed a district court ruling that held the state ban was "substantially related to the important government interest of providing equal athletic opportunities for females." The panel held that the state ban violated Title IX of the federal Education Amendments Act, which prohibits discrimination "on the basis of sex" in federally funded schools, including discrimination based on gender identity.
The panel declined to rule on a claim from the ACLU-Lambda Legal lawsuit that the ban also violated the federal Constitution's guarantee to equal protection of the law. Even though it noted that West Virginia's law banned transgender girls from participating on girls' sports teams but did not prohibit transgender boys from participating on boys' sports teams, the panel sent the case back to district court for further development of the equal protection claim.
"We do not hold that government officials are forbidden from creating separate sports teams for boys and girls. ..." wrote Heytens. "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. We hold only that the district court erred in granting [West Virginia's] motions for summary judgment in this particular case and in failing to grant summary judgment to [Jackson] on her specific Title IX claim."
Joining Heytens in the opinion was Judge Pamela Harris (a Barack Obama appointee).
Dissenting from the majority was Judge G. Steven Agee (a George W. Bush appointee). Agee limited his consideration of Jackson to comparisons that see a transgender girl as being similarly situated to a biological boy before or after puberty. He said that any transgender girl can simply stop taking hormone therapy in order to develop an advantage on the sports field. Agee also opined at one point that, if transgender girls use a private stall in a bathroom, just as cisgender girls and women do, "Does that mean that biological women should therefore be allowed open access to the men's restroom?"
The Biden administration supported trans athlete Pepper-Jackson in briefs to the 4th Circuit, as did National Women's Soccer League Players Association and retired lesbian star Megan Rapinoe; Women's National Basketball Association players Layshia Clarendon of the Los Angeles Sparks and Brianna Turner of the Chicago Sky; and lesbian tennis legend Billie Jean King. Another lesbian tennis legend, Martina Navratilova, joined a brief in support of West Virginia's trans ban. She has frequently spoken out against trans girls playing on girls' sports teams.
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