College soccer player wants a say in federal case over transgender athletes

A women’s soccer player at West Virginia State University is seeking to intervene in a federal case about the state’s new law affecting transgender athletes.

Her attorneys include a prominent Republican state lawmaker and representatives of a conservative Christian nonprofit advocacy group that has participated in clashes over LGBTQ policy across the country.

Lainey Armistead

Lainey Armistead, a college junior from Owensboro, Ky., filed the motion to intervene with the support of lawyer Brandon Steele, chairman of the House Government Organization Committee, along with lawyers from the national Alliance Defending Freedom.

Her motion says she seeks to defend the new law, which defines male and female “based solely on the individual’s reproductive biology and genetics at birth.” That definition doesn’t take gender identity into account.

“Allowing Armistead to intervene ensures a full-throated defense of the Sports Act,” her motion states.

“This Court deserves to hear from the very parties most protected by the Sports Act, most affected by attempts to eviscerate its protections, and most motivated to aggressively defend the law,” wrote lawyers for Armistead.

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

West Virginia’s law 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.”

Becky Pepper-Jackson

A federal lawsuit was brought earlier this year on behalf of Harrison County middle schooler Becky Pepper-Jackson, supported by lawyers from ACLU-West Virginia and Lambda Legal. They argued that the new law unfairly would have prevented her from participating on the girls cross country team at her school.

U.S. District Judge Joseph Goodwin granted a preliminary injunction in July, but the broader issues in the case are ongoing. Similar lawsuits are playing out in other states like Florida. 

The lawyers for Becky Pepper-Jackson contend that the case’s train has already left the station — that a scheduling order has already kicked off depositions and discovery — and that allowing an intervention now would unnecessarily complicate matters.

“In sum, given how far this case has progressed, the prejudice that Armistead’s delayed intervention will likely cause, and Armistead’s failure to offer any satisfactory reason for her tardiness, Armistead’s intervention motion fails for the independent reason that it is untimely,” wrote the lawyers for Becky Pepper-Jackson.

Moreover, they wrote, the case is framed specifically by how application of the law would affect the middle school cross country runner. It challenges West Virginia’s new law, but ultimately seeks to allow Becky Pepper-Jackson to participate on the girls cross country team.

“As a third-year college student at West Virginia State who plays soccer, Armistead cannot plausibly argue that she would ever compete with or against B.P.J., an eleven-year-old girl at Bridgeport Middle School who runs cross country,” wrote the lawyers for Becky Pepper-Jackson. “The ultimate relief in this case will be ‘confined’ to B.P.J. and will have no direct impact on Armistead.”

Even if Armistead were to prevail, they contend, that wouldn’t guarantee what she seeks to stop: having to compete against women who are transgender. Because she is on an intercollegiate athletic team, games could be scheduled against teams in other states that comply with the NCAA’s rules permitting women who are transgender to play on women’s soccer teams.

“Armistead will therefore continue to face the prospect of competing against women who are transgender irrespective of H.B. 3293’s legality or whether any relief runs beyond B.P.J.,” wrote the lawyers for Becky Pepper-Jackson.

Armistead’s attorneys contend her position doesn’t fully overlap with the current defendants, who are state and local officials.

“This Court deserves to hear from the very parties most protected by the Sports Act, most affected by attempts to eviscerate its protections, and most motivated to aggressively defend the law,” wrote the lawyers for Armistead.

Her lawyers did not contend Armistead currently faces competition from transgender athletes seeking to compete on her soccer team. Instead, they pointed to examples in states like Connecticut and Montana to suggest a possibility of that happening.

“Even one girl displaced from the women’s podium, or the field, or the team by a male individual takes away an opportunity from a woman,” wrote lawyers for Armistead.

If the West Virginia law were overturned, the lawyers wrote, Armistead could face a choice of competing on her team against a transgender athlete or not competing at all.

“This litigation could eviscerate Armistead’s ability to compete fairly and safely and to participate in a system designed to protect women,” her lawyers wrote.

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