Justice Department says new West Virginia law on transgender athletes is unlikely to stand

The U.S. Department of Justice says a new West Virginia law new law prohibiting transgender athletes from competing on female sports teams is unlikely to withstand a challenge under federal law.

Federal officials submitted a “statement of interest” in a case 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.

That’s a fairly common move designed to explain the interests of the United States in litigation between parties, sometimes in civil rights cases.

In this case, the Justice Department has concluded that the challenge on behalf of young athlete Becky Pepper-Jackson will prevail, and it’s providing that guidance in federal court: “The United States believes that Plaintiff will likely succeed on the merits of her Title IX and equal protection claims.”

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 State of West Virginia, in a separate motion, has filed to intervene “to defend the constitutionality of the state statute challenged in this case.” That filing notes, “Plaintiff did not name the State of West Virginia or its Attorney General as a party.”

This year, West Virginia joined dozens of states placing restrictions on transgender athletes’ participation on sports teams. West Virginia’s law becomes effective July 8.

West Virginia’s law defines male and female as the biological sex at birth and says “any student aggrieved by a violation” may bring an action against a county board or state institution of higher education.

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

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

“The State claims that HB 3293 will protect athletic opportunities for girls. Neither the facts nor the law support that assertion,” the Justice Department states in its recent filing.

“To be sure there remain significant barriers to providing full equity in athletics for female students. but permitting participation by transgender girls, who make up ‘approximately one half of one percent of the United States’ population’ is not one of them.”

The federal 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.

The Justice Department concluded that West Virginia’s bill violates federal Title IX by prohibiting, solely on the basis of sex, a certain subset of students — girls who are transgender — from participating in athletic programs offered by publicly-funded schools.

And the Justice Department concluded the bill violates the U.S. Constitution’s Equal Protection Clause, and “West Virginia cannot demonstrate that prohibiting a handful of transgender student athletes from playing on athletic teams consistent with their gender identity is substantially-related to any important government interest.”

Mike Stuart

Speaking today on MetroNews’ “Talkline,” former U.S. Attorney Mike Stuart, a former state GOP chairman, objected to the Justice Department’s position in the case. He took the position that West Virginia’s law protects the athletes on female teams against unfair competition.

“I think this is an issue about fundamental fairness and in defense of women’s athletics,” he said. “What do you say to the young girl who gets not selected on the team because she couldn’t outcompete the biological male who is now a trans female?”

Stuart contended the Justice Department should have different priorities and should not get involved. “This would have been one of the cases where I drew the line. I just fundamentally disagree,” he said.

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. The lawsuit aimed at giving her that opportunity refers to her by her initials, B.P.J.

“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.”

Becky Pepper-Jackson

Earlier this spring, 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.

The Justice department’s filing agrees with that conclusion.

“B.P.J., unlike her cisgender peers, would miss the many benefits of interscholastic athletics, including skill-building, exercise, motivation, social ties, and increased confidence,” the Justice Department stated.

“As many courts have recognized, this type of exclusion would cause a student like B.P.J. to experience stigma, isolation and dignitary harm.”

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