The State of West Virginia is arguing that a new law being challenged in federal court does not single out and treat transgender athletes differently.
Instead, lawyers for the state contend, the law doesn’t recognize the young athletes’ transgender status at all.
“Indeed, it treats all biological males the same and prohibits them from participating in female sports to protect athletic opportunities for biological females. Therefore, Plaintiff cannot show it discriminates against transgender athletes,” wrote lawyers from the Attorney General’s Office, representing the state.
That’s the crux of the argument made by lawyers for the State of West Virginia in response to a motion for preliminary injunction filed last month on behalf of a Harrison County middle school student who wants to run on the girls cross country team.
West Virginia’s law goes into effect in a week, July 8.
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.
Each of those filed responses to the lawsuit over the past couple of weeks.
This year, West Virginia joined dozens of states placing restrictions on transgender athletes’ participation on sports teams.
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.
Addressing the bill this week, Gov. Jim Justice made an argument similar to the one posed by the lawyers representing the state: that the bill doesn’t discriminate against transgender athletes — but that it merely defines athletic participants by their biology at birth. Justice, who signed the law, contended that’s to assure fairness for female athletes.
“You know, from the standpoint of West Virginia, I don’t think anyone here is discriminating against transgender people,” Justice said this week.
“My whole thought was one thing. I thought it was terribly, terribly unfair to our girls — kids who were absolutely trying to compete athletically — to be able to try to have to compete against those folks who are transgenders. And I think, really, that’s the whole thing from my standpoint — had nothing to do with discrimination in any way.
“My gosh a livin’, I hope West Virginia is always a very welcoming state and loves everyone, everyone.”
Federal officials earlier this month submitted a “statement of interest” in the case brought on behalf of 11-year-old Becky Pepper-Jackson of Harrison County, the transgender girl who had wanted to compete in cross country this coming school year.
The Justice Department has concluded that her challenge 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.”
West Virginia’s official position is just the opposite. The State of West Virginia was not initially a party to the case, but lawyers from the Attorney General’s Office filed to intervene.
The state’s filing quotes liberally from earlier caselaw by the late Justice Ruth Bader Ginsburg to contend physical differences between men and women are enduring and to argue that should be a central point here, no matter an athlete’s gender identity.
“While Plaintiff no doubt identifies as female and has taken steps to chemically alter Plaintiff’s adolescent body, Plaintiff will always remain biologically different from females,” wrote lawyers for the state.
“Because such physiological differences are at the root of why sports teams are generally separated on the basis of sex, by adopting a policy pursuant to which Plaintiff is not permitted to join a women’s sports team, the State did not ‘treat differently persons who are in all relevant respects alike.'”
The state contends the new law does not merit an injunction. Lawyers for the state contend Becky Pepper-Jackson has an available alternative, the boys’ cross country team.
“It is undisputed Plaintiff can try out for the boys’ cross-country and track teams. Thus Plaintiff does not satisfy that the balance of hardships and the public interest weighs in favor of injunctive relief,” wrote lawyers for the state.
The other defendants filed responses too, each saying they shouldn’t be held responsible for the new law.
Lawyers representing state Superintendent Burch and the state Board of Education said they “did not cause and will not cause Plaintiff to be denied participation on a West Virginia public secondary school’s athletic team of her choice.”
Moreover, lawyers for the state board said such a claim wouldn’t be appropriate until rules and regulations are promulgated to reflect the law.
“To date, no rules have been promulgated,” the lawyers wrote, describing the need for preparation, public comment and final approval. “As a result, challenging WVBOE’s conduct in this matter is clearly not ripe for judicial review under the precedent discussed above.”
Likewise, the Secondary Schools Activities Commission says it has no reason to be sued.
“WVSSAC takes no position relative to the preliminary injunction because, by the express terms of HB 3293, WVSSAC has no role and is not envisioned as having a role in enforcing West Virginia’s law at this time,” lawyers wrote for the organization.
“Indeed, Plaintiff has not alleged WVSSAC has taken any actions whatsoever toward enforcing the challenged law and, conversely, has identified WVSSAC’s policies and forms as gender and therefore transgender neutral.”
Lawyers contend that although Harrison County’s school board and superintendent must enforce the law, it “cannot be liable to Plaintiff because they were not responsible for and did not pass the West Virginia statute (“the Act”) at issue in this civil action.”