Attorney General Patrick Morrisey announced his office has officially filed for a U.S. Supreme Court review of whether a state law violates the rights of a middle school track and cross country runner who identifies as a girl and uses puberty blocking medication.
It’s not certain the Supreme Court will take the case, but Morrisey — who is the Republican nominee for governor — says conditions are right for the court to do so.
“If the Supreme Court takes this up, it’ll determine the fate of women’s sports across the entire country for many years to come,” Morrisey said at a news briefing today at his office, where he was joined by former West Virginia State University soccer player Lainey Armistead.
“The Supreme Court should take this up now because more and more girls are being displaced and more and more opportunities are being taken away.”
Morrisey’s office is aiming to challenge a 4th Circuit Court of Appeals split ruling that focused on the eligibility of Harrison County middle school athlete Becky Pepper-Jackson.
The majority of the three-judge 4th Circuit panel concluded that West Virginia’s law banning transgender girls from participating on girls sports teams would unfairly discriminate against the middle schooler, who was born a boy but has been living as a girl, using medical treatment to hold off the effects of puberty.
The 2-1 ruling did not invalidate West Virginia’s law but was applied to Becky Pepper-Jackson’s specific situation under federal Title IX, which prohibits sex-based discrimination in any school or education program that receives federal funds.
ACLU, ACLU-WV, Lambda Legal and Cooley law firm provided a joint response to West Virginia’s Supreme Court filing today, saying they believe the 4th Circuit majority got the case right.
“As the Fourth Circuit made abundantly clear, our client deserves the opportunity to participate in sports teams without discrimination. We will make our position clear to the Court and continue to defend the right of all students to play as who they are.”
West Virginia passed a law in 2021 to join dozens of states placing restrictions on transgender athletes’ participation on sports teams. That law defines male and female “based solely on the individual’s reproductive biology and genetics at birth.”
A key part says, “Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”
Becky Pepper-Jackson, with support from ACLU West Virginia and other organizations, challenged whether the law would prevent her from participating on the girls cross country and track teams.
Early last year, U.S. District Judge Joseph Goodwin of the Southern District of West Virginia upheld the state law. “The question before the court is whether the legislature’s chosen definition of ‘girl’ and ‘woman’ in this context is constitutionally permissible. I find that it is,” Goodwin wrote last year in a 23-page ruling.
His ruling was appealed to the Fourth Circuit, where the panel’s majority largely disagreed.
The appeals ruling focused on the interaction between the state law and Pepper-Jackson’s individual circumstances.
“The question before us is whether the Act may lawfully be applied to prevent a 13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade from participating in her school’s cross country and track teams,” Judge Toby Heytons wrote in the majority opinion. “We hold it cannot.”
The appeals ruling also made clear that it only goes so far.
“We do not hold that government officials are forbidden from creating separate sports teams for boys and girls or that they lack power to police the line drawn between those teams. We also do not hold that Title IX requires schools to allow every transgender girl to play on girls teams, regardless of whether they have gone through puberty and experienced elevated levels of circulating testosterone.”
The appeals judges ordered the lower court to enter summary judgment for Pepper-Jackson on her claim that her rights have been violated under federal Title IX.
The lower court activity has largely been on hold, anticipating the appeal filing with the U.S. Supreme Court.
West Virginia’s filing to the high court asks whether Title IX, the federal law that prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government, prevents a state from consistently designating girls’ and boys’ sports teams based on biological sex determined at birth.
The filing also asks the court to determine whether the U.S. Constitution’s Equal Protection Clause prevents a state from offering separate boys’ and girls’ sports teams based on biological sex determined at birth.
West Virginia’s filing contends the case is an ideal vehicle to address vital questions of federal law, saying “this case presents a nationally important constitutional question about sports laws.”
“Millions of girls play interscholastic sports. States need clarity, especially considering how States ‘clearly’ have an ‘interest in the continued enforceability of [their] own statutes,” the West Virginia Attorney General’s Office wrote in the filing, drawing wording from prior cases.
“Now is the time to offer that clarity, and this case presents a chance to protect basic fairness for women and girls.”