A federal judge has granted a preliminary injunction to allow a transgender middle schooler to run on the cross country team this fall.
U.S. Circuit Judge Joseph R. Goodwin issued the order Wednesday in the Southern District of West Virginia. Harrison County 11-year-old Becky Pepper-Jackson, along with lawyers from ACLU-West Virginia, had argued that the new law unfairly would have prevented her from participating on the girls cross country team at her school.
Goodwin concluded the new law violates Becky’s rights both under the Equal Protection Clause of the Constitution and under Title IX requirements. The judge noted that the current ruling applies specifically to Becky’s situation and that the constitutional application to other athletes would be explored in later stages of litigation.
Goodwin’s 15-page order dismissed claims that the law was meant to protect the rights of female athletes, saying few transgender students want to participate in team sports in the first place.
“At this point, I have been provided scant evidence that this law addresses any problem at all, let alone an important problem,” Goodwin wrote. “When the government distinguishes between different groups of people, those distinctions must be supported by compelling reasons.”
The new law 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.
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.
The lawsuit was filed 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, represented by the Attorney General, asked to join and was allowed.
Lawyers for the state had argued that the law does not single out and treat transgender athletes differently.
Instead, lawyers for the state contended, the law doesn’t recognize the young athletes’ transgender status at all. The law recognizes only the sex at birth without taking gender identity into account.
“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.
Becky Pepper-Jackson was born male but identified as a girl from a very young age, stated the lawsuit filed on her behalf. 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.
“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.
Goodwin reached a different conclusion about the effects of the treatment: “As a result, B.P.J. has not undergone and will not undergo endogenous puberty, the process that most young boys undergo that creates the physical advantage warned about by the state.”
Moreover, the judge concluded, permitting Becky to participate on the girls teams would not take away athletic opportunities from other girls. Goodwin noted that transgender people make up less than 1 percent of the adult population and .7 percent of 13- to 17-year-olds.
“The number of transgender people who wish to participate in school-sponsored athletics is even smaller. Insofar as I’m aware, B.P.J. is the only transgender student at her school interested in school-sponsored athletics. Therefore, I cannot find that permitting B.P.J. to participate on the girls’ cross country and track teams would significantly, if at all, prevent other girls from participating,” he wrote.
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.
“You know, from the standpoint of West Virginia, I don’t think anyone here is discriminating against transgender people,” Justice said in a broad-ranging state briefing late last month.
“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.”