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As broader issues continue in transgender athletics case, parties want to be dismissed

A federal judge granted a preliminary injunction to allow a transgender middle schooler to run on the cross country team this fall, but the broader issues in the case are continuing.

While the judge determined that rising middle schooler Becky Pepper-Jackson should be allowed to participate on a girls cross country team this fall, the broader challenge to a new state law is still being argued.

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.

In court filings over the past few days, the West Virginia Secondary School Activities Commission, the Harrison County Board of Education, the state Board of Education and the West Virginia Attorney General have asked to be dismissed from the lawsuit.

Generally, each argued that they didn’t initiate the law that is being challenged.

For example, the State Board of Education maintains not only that it didn’t push for the law but that it wouldn’t be the entity to enforce it either.

“The actual enforcement of West Virginia Code 18-2-25d, which plaintiff asserts results in her injury, is not and will not be by WVBOE and/or Superintendent Burch,” wrote lawyers for the state board.

“WVBOE and Superintendent Burch have not enforced the statute against Plaintiff and neither will be the party enforcing the statute against Plaintiff in the future.”

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.

Harrison County middle school student Becky Pepper-Jackson, along with lawyers from ACLU-West Virginia, argued that West Virginia’s new law unfairly would have prevented her from participating on the girls cross country team at her school.

Becky Pepper-Jackson

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

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 West Virginia Attorney General’s Office also filed a motion asking to be dismissed from the case, saying the office is not tasked with directly enforcing West Virginia’s education laws.

“The Attorney General is not an appropriate party to this litigation because the Attorney General lacks the statutory authority to directly enforce the provisions of the Act,” wrote lawyers for the office.

The Harrison County Board of Education also wants to be dismissed, saying it didn’t pass the law being challenged.

“The county board has no policy or custom of its own that would prevent B.P.J. from joining the girls’ sports teams due to their transgender status,” wrote lawyers for the county board.

“However, the County Board is required to follow state law, and so it — along with every county board of education in the State of West Virginia — is tasked with enforcing the Act to the extent that it is in effect now and to the extent that it may go into effect in the future.”

Lawyers for the Harrison County school board wrote that because of the judge’s earlier decision, the new law won’t be enforced against Becky Pepper-Jackson.

“Because of the Court’s injunction, B.P.J., just like her female classmates, will be permitted to try out for girls’ sports teams at school,” the lawyers wrote.

“Thus, the County board has not and will not cause the alleged harm to B.P.J. as set forth in her amended complaint while this Court’s injunction remains in place. The County Board simply is not responsible for the Act or any injury it may inflict, and it should be dismissed on that basis.”





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