No dismissal for defendants in W.Va. transgender athletes case

A federal judge has rejected motions by state and local officials to be dismissed from a lawsuit over a new law affecting West Virginia transgender athletes.

Joseph Goodwin

U.S. District Judge Joseph Goodwin ruled that middle school athlete Becky Pepper-Jackson, the plaintiff, has demonstrated that she would be affected by the new law.

“She has adequately alleged an injury-in-fact — that she will be treated differently on the basis of sex,” the judge wrote.

Goodwin concluded that the state school board, the Harrison County school board and the West Virginia Secondary Schools Activities Commission should not be dismissed because each would play a role in enforcing the law. The same goes for officials such as state Superintendent Clayton Burch and Harrison County Superintendent Dora Stutler, defendants in the lawsuit because of their positions.

Judge Goodwin earlier issued a preliminary injunction in the case, so this is the second time he has ruled in favor of the young athlete’s position. Although the temporary injunction halted application of the law for the time being, longer-term issues are still under consideration by the federal court.

Loree Stark

“We’ve said all along that this bill is not only cruel and stigmatizing but also unconstitutional. With this ruling today, we look forward to proving our case in court,” stated Loree Stark, legal director of ACLU-West Virginia.

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

House Bill 3293 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.

Lawyers for Becky Pepper-Jackson — or B.P.J., as she is identified in court filings — are challenging the law under Title IX policy and the Constitution’s Equal Protection Clause.

“H.B. 3293 requires each defendant to prevent B.P.J. from playing on girls’ sports teams; no future factual development will change that effect,” Goodwin wrote.

“Second, and consistent with my ruling on the preliminary injunction, B.P.J. has sufficiently alleged that she will experience hardship if this law is enforced against her.”

Each of the entities that wanted to be dismissed from the lawsuit 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.”

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.

Within the past few years, 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. The lawsuit was meant to assure she could go through with her hope of trying out for the cross-country and track teams at Bridgeport Middle School.

“I just want to run, and the state wants to stop me from running as part of a team at my school,” Becky said in a news release distributed by ACLU-West Virginia. “I love running, and being part of a team, and the State of West Virginia should explain in court why they won’t let me.”

Becky Pepper-Jackson

Goodwin’s order also provided analysis of how the judge will use pronouns going forward in the case.

Because of the way West Virginia’s law is set up, the judge noted that it will be necessary to differentiate between males and females, as assigned at birth, without regard to their gender identity. So, when referring to someone’s sex assigned at birth, the judge said he will use “biological male” and “biological female.”

Otherwise, Goodwin wrote, “I will use the pronouns associated with a person’s gender identity. In doing so, I am not expressing any opinion, political, judicial, or otherwise about any issue in this case.”

But, the judge noted, “I will not order any litigant to use the language that I use.”

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