Federal lawsuit challenges constitutionality of West Virginia’s new law on transgender athletes

A coalition including ACLU-West Virginia has filed a federal lawsuit over the state’s new law prohibiting transgender athletes from competing on female sports teams.

The lawsuit was brought on behalf of 11-year-old Becky Pepper-Jackson of Harrison County, a transgender girl who had wanted to compete in cross country this coming school year.

“I just want to run. I come from a family of runners,” she said in a release distributed today by the groups filing suit. “I know how hurtful a law like this is to all kids like me who just want to play sports with their classmates, and I’m doing this for them. Trans kids deserve better.”

The suit was filed in U.S. District Court for the Southern District of West Virginia against the state Board of Education, state schools Superintendent Clayton Burch, the West Virginia Secondary School Activities Commission, the Harrison County Board of Education and Harrison County Superintendent Dora Stutler.

The lawsuit contends West Virginia’s law violates the Equal Protection Clause of the U.S. Constitution.

“H.B. 3293 is based on unfounded stereotypes, false scientific claims, and baseless fear and misunderstanding of girls who are transgender, which are insufficient to justify discriminatory treatment under any level of scrutiny,” the lawsuit states.

This year, West Virginia joined dozens of states placing restrictions on transgender athletes’ participation on sports teams.

Advocates for the bill said it would protect young female athletes from competing against stronger athletes who were born male.

Opponents said the bill is discriminatory, mean-spirited, a likely turnoff for business investment and a possible conflict with competition under the NCAA.

Now the lawsuit says the bill unconstitutional and unscientific.

Loree Stark

“As we’ve said since HB 3293 was introduced, this legislation is not only cruel and stigmatizing — it’s unconstitutional,” said ACLU-WV Legal Director Loree Stark.

The bill 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.

The law becomes effective July 8.

The federal lawsuit contends that discriminates against people born with a gender identity that doesn’t match their sex assigned at birth. Before transgender children reach puberty, the lawsuit states, they have the option to receive puberty-delaying medical treatment and experience none of the effects of testosterone that they usually would.

Later, they could opt for hormone therapy and would never experience physiological changes brought about by testosterone.

“There is scientific consensus that sex chromosomes and genitals alone — i.e., independent of circulating testosterone — do not meaningfully affect athletic performance,” the lawsuit states.

“Rather, any population-level performance differences between cisgender boys and cisgender girls in athletic competition are due to circulating testosterone levels that typically diverge significantly starting at puberty.”

Becky Pepper-Jackson, the lawsuit states, was born male but identified as a girl from a very 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.

Two years ago, 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.

She had planned to try out for the cross-country and track teams at Bridgeport Middle School next year.

“B.P.J. comes from a family of runners, and she is excited for her chance to try out and compete,” the lawsuit states. “But without this Court’s intervention, B.P.J. will be denied that opportunity simply because she is transgender.”

Just a little more than a week ago, the lawsuit says, the middle school principal told her mother that Becky would not be permitted to join the cross country or track teams because of West Virginia’s law.

Barring B.P.J. from participating in school sports prevents her from experiencing the motivation, challenge, camaraderie, and joy that sport has brought her in the past, as well as opportunity to be teammates with other girls participating in athletics,” the lawsuit states.

Earlier this month, a U.S. appeals court heard a similar challenge of a bill passed in Idaho last year. The ACLU and the women’s rights group Legal Voice sued last year on behalf of a transgender cross country athlete at Boise State and a cisgender high school athlete who feared invasive tests to prove her gender that are outlined in Idaho’s law.

Gov. Jim Justice

In West Virginia, Gov. Jim Justice signed the bill while saying his experience as a girls high school basketball coach led him to conclude allowing transgender athletes to compete on girls teams would result in unfair competition.

“I’m a coach, and I coach a girls basketball team. We all know what an absolute advantage boys would have playing against girls,” Justice said during an appearance on MSNBC.

But, he said, “I didn’t make it a priority. It wasn’t my bill. It’s just come to me and I have signed it because I believe from the standpoint of a coach that girls work so hard to obtain Title IX. And I don’t have any idea now why we are trying to disadvantage them in participating in the sport that they put so much into.”

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