CHARLESTON — West Virginia Attorney General Patrick Morrisey’s office is filing an application with the U.S. Supreme Court to vacate the injunction pending appeal in a case challenging West Virginia’s ban on transgender athletes.
In making the announcement March 9, Morrisey said he’s “taking the fight for fairness in women’s sports” to the Supreme Court.
“We will keep on fighting so female athletes can compete on a level playing field,” Morrisey said. “The (Save Women’s Sports Act) protects fairness and safety for female athletes across West Virginia. We will vigorously defend the act because we think we are clearly correct on the law.
Morrisey
| Courtesy photo
“Some will claim this is simply discrimination, but nothing could be further from the truth.”
Attorneys for the other side called Morrisey’s actions the latest attack on transgender youth in the state.
“We will vigorously defend Becky’s right to participate in team sports, and would urge state legislators countrywide to just let the kids play,” a statement from Lambda Legal, the American Civil Liberties Union and ACLU-West Virginia said.
Last month, the United States Court of Appeals granted a request to stay a lower court decision in the case. That stay allowed Bridgeport Middle School student-athlete Becky Pepper-Jackson to try out for her school’s spring track and field team the following week. The 2-1 order was supported by Judges Pamela Harris and Toby Heytens. Judge Steven Agee dissented from the order.
On February 7, U.S. District Judge Joseph Goodwin issued a Memorandum Opinion and Order denying a motion to stay his January 5 opinion that the state law passed in 2021 keeps transgender student-athletes who are born male from participating in girls’ sports.
The plaintiffs filed an instant motion requesting the stay on January 20 so the girl can continue to participate on her school’s track and cross country teams “consistent with her gender identity.”
“This simple law (Save Women’s Sports Act) demands that girls and women get their fair share of opportunities in sports,” Morrisey said Thursday. “The recent injunction decision from the United States Court of Appeals for the Fourth Circuit is a minor setback, but we remain confident in the merits of our defense. We are resolute in protecting opportunities for women and girls in sports because when biological males win in a women’s event—as has happened time and again—female athletes lose their opportunity to shine.
“That’s why we’re taking this case to the Supreme Court.”
In the Supreme Court filing, Morrisey’s office said the appeals court’s injunction “harms biologically female athletes, too, who will continue to be displaced as long as biological males join women’s sports teams. In that way, the majority’s cursory decision undermines equal protection — it doesn’t advance it.”
Under the Save Women’s Sports Act, all biological males, including those who identify as transgender girls, are ineligible for participation on girls’ sports teams.
“Becky is a 12-year-old girl who has tried out and been accepted as a member of the girls track team, with no issue from her teammates,” her legal team said in the statement. “She has been receiving puberty-delaying medication and gender-affirming hormones.
“It is unconscionable that the West Virginia Attorney General wants to prevent Becky from participating in sports with her peers. Nearly 200 collegiate and professional women athletes – including Billie Jean King, Megan Rapinoe, and Candace Parker – joined in amicus briefs supporting trans youth participation in sports.
“West Virginia refuses to address the facts of Becky’s case and instead talks about elite athletic competitions that have nothing to do with the facts here. The AG and his allies have cherry-picked unique incidents and ignored the overwhelming evidence that allowing transgender youth to participate in team sports has benefits for all.”
Heather Jackson filed her complaint in federal court in May 2021 on behalf of Becky against the West Virginia Board of Education, then-Superintendent Clayton Burch, the Harrison County Board of Education, county Superintendent Dora Stutler and the West Virginia Secondary Schools Activities Commission. Becky is 11 years old who identifies and lives as a girl.
In 2021, as she prepared to enter middle school, Becky expressed an interest in trying out for her school’s girls’ cross country and track teams. The school informed her mother the decision to let Becky participate depended on the outcome of HB 3293, which then was pending in the state Legislature. When the law passed, the school told Becky she could not try out for the girls’ team.
In his 23-page opinion issued January 5, Goodwin said he suspects the aim of House Bill 3293, which became the Save Women’s Sports Act when it became law, was “to politicize participation in school athletics for transgender students.”
In his February order, Goodwin said the question was whether the Save Women’s Sports Act survives intermediate scrutiny. He said the challenge asked the court to consider the athlete’s gender in lieu of sex and to include her in the state’s definition of “female.”
“To do so, the court would have needed to assess (her) individual characteristics, which is not appropriate under intermediate scrutiny,” he wrote. “That analysis also would have been inconsistent with my decision to uphold the legislature’s chose definitions of ‘male’ and ‘female’ for the purpose of athletics.
“Accordingly, I cannot find that B.P.J. is likely to succeed on her as-applied challenge of the act on appeal.”
In Janaury, Goodwin wrote that the law “was clearly carefully crafted with litigation such as this in mind.”
Becky initially requested a preliminary injunction to allow her to compete on the girls’ track and cross country teams while the case was pending, and Goodwin granted that. All defendants moved to dismiss, but he denied those actions. And college athlete Lainey Armistead moved to intervene as a defendant, which Goodwin allowed. All parties then moved for summary judgment.
In his analysis, Goodwin broke down issues with all parties.
He addresses the plaintiff’s allegation that HB 3293 was “part of a concerted, nationwide effort to target transgender youth for unequal treatment.” He also notes how bill sponsor Delegate Jordan Bridges posted about the bill on social media and “liked” comments advocating for physical violence against transgender girls, comparing transgender girls to pigs and calling transgender girls by a pejorative term.
But, Goodwin said the plaintiffs do not argue the law is unconstitutional under the Supreme Court’s animus doctrine. He also says the record lacks sufficient legislative history to make such a finding.
“At the time it passed the law, West Virginia had no known instance of any transgender person playing school sports,” Goodwin wrote. “While the Legislature did take note of transgender students playing sports in other states, it is obvious to me that the statute is at best a solution to a potential, but not yet realized ‘problem.’”
Goodwin also discussed “what this case is not,” noting the politically charged nature of transgender acceptance in culture today.
“This case is not one where the court needs to accept or approve (Becky’s) existence as a transgender girl,” he wrote. “(Becky), like all transgender people, deserves respect and the ability to live free from judgment and hatred for simply being who she is.
“But for the state Legislature, creating a ‘solution’ in search of a problem, the courts would have no reason to consider eligibility rules for youth athletics. Nevertheless, I must do so now.”
Goodwin said it also isn’t a case where Becky challenges the “entire structure of school sports.”
“Ultimately, (Becky’s) issue here is not with the state’s offering of girls’ sports and boys’ sports,” Goodwin wrote. “It is with the state’s definitions of ‘girl’ and ‘boy.’ The state has determined that for the purposes of school sports, the definition of ‘girl’ should be ‘biologically female,’ based on physical difference between the sexes. … (Becky) seeks a legal declaration that a transgender girl is ‘female.’”
Goodwin said he won’t get into the business of defining what it means to be a girl or woman.
“The courts have no business creating such definitions, and I would be hard-pressed to find many other contexts where one’s sex and gender are relevant legislative considerations,” he wrote. “But I am forced to consider whether the state’s chosen definition passes constitutional muster in this one discrete context.”
Goodwin addressed the plaintiff’s claim that the bill violates the Constitution’s Equal Protection Clause of the Fourteenth Amendment, which he denies.
“A transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males,” he wrote. “And biological males generally outperform females athletically. The state is permitted to legislate sports rules on this basis because sex, and the physical characteristics that flow from it, are substantially related to athletic performance and fairness in sports.
“Could the state be more inclusive and adopt a different policy, as (Becky) suggests, which would allow transgender individuals to play on the team with which they, as an individual, are most similarly situated at a given time? Of course. But it is not for the court to impose such a requirement here.”
Goodwin also addressed the plaintiff’s claim that the bill violates Title IX, which he also denies.
“Title IX authorizes sex separate sports in the same manner as HB 3293, so long as overall athletic opportunities for each sex are equal,” Goodwin wrote. "Despite her repeated argument to the contrary, transgender girls are not excluded from school sports entirely. They are permitted to try out for boys' teams, regardless of how they express their gender."
He also denied a WVSSAC motion arguing that it isn’t a state actor and, thus, not subject to scrutiny under the Equal Protection Clause or Title IX.
“Though county boards of education have the statutory authority to supervise and control interscholastic athletic events, they have delegated that authority to the WVSSAC,” Goodwin wrote. “Every public secondary school in West Virginia is a member of the WVSSAC, and the school principals sit on the WVSSAC’s Board of Control to propose and vote on sports rules and regulations. Any rule the WVSSAC passes is then subject to approval by the state Board of Education, and the state Board of Education requires that any coach who is not also a teacher be trained by the WVSSAC and certified by the state Board of Education. …
“It appears that the WVSSAC cannot exist without the state, and the state cannot manage statewide secondary school activities without the WVSSAC. The WVSSAC is pervasively entwined with the state.”
U.S. District Court for the Southern District of West Virginia case number: 2:21-cv-00316
