CHARLESTON — The state Board of Education, the state Secondary Schools Athletic Commission and the Harrison County school board all have asked to have a case regarding the state’s impending anti-transgender athlete law dismissed.
All three of the groups say they shouldn’t be included in the lawsuit because the law, which is set to take effect July 8, isn’t one they asked for and isn’t one they’ll be responsible for enforcing, according to court documents.
The groups filed motions last week in federal court in the case brought by 11-year-old Becky Pepper-Jackson and her mother Heather Jackson. They say the law would prevent Pepper-Jackson from trying out for her middle school cross country team for the 2021-22 school year. They seek an injunction to keep the law from going into effect.
The new law would force the state Board of Education to create rules for local officials to enforce. It would require transgender female student-athletes to participate in a sport based on their sex at birth. The law doesn’t mention transgender males.
In their court filings, the state board and the SSAC both said they wouldn’t be enforcing the law. They say local officials would be doing that. The state board says the Legislature only provided it with the job of establishing the rules to enforce the ban, and it also said the board didn’t request the ban and had nothing to do with the creation of the bill that Gov. Jim Justice signed into law in April.
State Superintendent Clayton Burch and Harrison County Superintendent Dora Stutler are defendants in the case, and they both have asked to have the case dismissed as well.
The SSAC also says it isn’t mentioned in the law regarding enforcement of the rules. It also says SSAC paperwork doesn’t ask athletes to identify themselves by gender. It says the school only provides a roster when names to the SSAC.
Both the state board and the SSAC say county school officials will be the ones enforcing the law. But, Harrison County’s school board also says it didn’t pass and isn’t responsible for the ban, saying it has caused Pepper-Jackson no harm.
It also says the injunction sought only would affect student-athletes in Harrison County, but again says the county doesn’t have a policy banning transgender athletes from participating based on gender identity.
Last month, the U.S. Department of Justice filed a statement in the case saying the law discriminates against student-athletes based on sex and gender identification.
Lambda Legal, the American Civil Liberties Union, ACLU West Virginia and Cooley LLP filed the lawsuit in May for Pepper-Jackson. Pepper-Jackson, whose entire family enjoys running, was hoping to join her Bridgeport Middle School cross country team.
“I just want to run, I come from a family of runners,” Pepper-Jackson said in a news release when the case was filed. “I know how hurtful a law like this is to all kids like me who just want to play sports with their classmates, and I’m doing this for them. Trans kids deserve better.”
Joshua Block, a senior staff attorney with ACLU, said ACLU has continually said they would take the transgender sport's laws to court.
“We told lawmakers around the country that we would see them in court if they passed legislation attacking trans youth, and today we are making good on that promise,” Block said in a news release. “Transgender youth in West Virginia who want to be on a team and challenge themselves should have the opportunity to do so, just like any other student.”
The lawsuit says Pepper-Jackson will be denied the opportunity to participate simply because she is transgender if the court does not intervene.
"As part of a wave of similar legislation introduced across the country, West Virginia passed a new law in April 2021 that categorically bans B.P.J. and all other girls who are transgender in West Virginia from participating in school sports consistent with their gender identity," the complaint states.
The complaint claims that House Bill 3293 was prompted by unfounded stereotypes, false scientific claims and baseless fear and misunderstanding of girls who are transgender.
"By barring B.P.J. and other girls who are transgender from participating in school athletics, HB 3293 discriminates on the basis of sex and transgender status in violation of the United States Constitution and Title IX of the Education Amendments of 1972," the complaint states. "If allowed to go into effect, HB 3293 will cause severe and entirely unnecessary harms and distress to B.P.J. and other girls who are transgender — an already vulnerable group of people subject to a history of discrimination that continues to this day."
Pepper-Jackson is seeking a court order to enjoin the defendants from enforcing House Bill 3293. She is represented by Loree Start of ACLU WV; Kathleen Hartnett, Julie Veroff, Andrew Barr, Elizabeth Reinhardt and Katelyn Kang of Cooley LLP; Carl Charles, Tara Borelli and Avatara Smith-Carrington of Lambda Legal; and Joshua Block, Taylor Brown and Chase Strangio of ACLU.
The Harrison County school board and Stutler are being represented by Susan Deniker of Steptoe & Johnson’s Bridgeport office. The state board and Burch are being represented by Kelly Morgan, Michael Taylor and Kristen Hammond of Bailey & Wyant in Charleston. The SSAC is being represented by Roberta Green, Anthony Nortz and Kimberly Bandy of Shuman McCuskey Slicer in Charleston.
The case has been assigned to District Judge Joseph Goodwin.
U.S. District Court for the Southern District of West Virginia case number 2:21-cv-00316