A prominent West Virginia case about transgender athletes participating in school sports will get hearing from the U.S. Supreme Court.
The high court has agreed to hear State of West Virginia v. B.P.J., which involves a challenge to West Virginia’s Save Women’s Sports Act. The case was included in an order list released this morning.
The justices will hear two cases during the October term covering a similar question: whether states may exclude transgender athletes from girls’ and women’s teams based on the sex they were assigned at birth.
West Virginia Attorney General J.B. McCuskey praised the court’s attention to the issues in the case. The attorney general reiterated a request to the Supreme Court last month to review the case.
“It’s a great day, as female athletes in West Virginia will have their voices heard. The people of West Virginia know that it’s unfair to let male athletes compete against women; that’s why we passed this commonsense law preserving women’s sports for women,” McCuskey said.
“We are confident the Supreme Court will uphold the Save Women’s Sports Act because it complies with the U.S. Constitution and complies with Title IX. And most importantly: it protects women and girls by ensuring the playing field is safe and fair.”
West Virginia Gov. Patrick Morrisey, whose office participated in the case when he was attorney general, said he is pleased the Supreme Court will review the issue.
“I am optimistic that after hearing the case, the Supreme Court will restore sanity to athletics and allow West Virginia to enforce its commonsense law that prevents boys from competing in girl’s sports,” Morrisey said.
Organizations including the American Civil Liberties Union and Lambda Legal said they would defend the ability of transgender athletes to participate in youth sports.
“Like any other educational program, school athletic programs should be accessible for everyone regardless of their sex or transgender status. Trans kids play sports for the same reasons their peers do–to learn perseverance, dedication, teamwork, and to simply have fun with their friends,” said Joshua Block, senior counsel for the ACLU’s LGBTQ & HIV Project.
“Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth. We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”
West Virginia passed its law in 2021, joining 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.” 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.”
Last year, a federal appeals panel rocked but did not knock down the West Virginia law.
The narrowly tailored ruling concluded the state law violates the rights of a middle school track and cross country runner who identifies as a girl and uses puberty blocking medication. The majority determined her rights have been violated under federal Title IX, which prohibits sex-based discrimination in any school or education program that receives federal funds.
But the appeals ruling did not fully invalidate West Virginia’s law. That leaves school districts and teams in a murky position when other transgender girls try out for teams.
The case decided by the Fourth Circuit Court of Appeals focused on middle schooler Becky Pepper-Jackson, who 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.
More recently, she was diagnosed with gender dysphoria and had been receiving puberty-delaying treatment for almost a year when West Virginia passed a bill affecting transgender athletes. Her federal lawsuit, where she is referred to as B.P.J., was aimed at being able to participate on the cross-country and track teams at Bridgeport Middle School.
“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 for the appeals court.
“We hold it cannot.”
The majority ruling in appeals court included a caveat to be clear that the ruling does not cover all instances of transgender athletes participating on sports teams.
“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.”