CHARLESTON — After a federal judge recently granted a preliminary injunction determining that a transgender student could run cross country at school this fall, the new state law is still being challenged.
The federal judge specified in the ruling that it only applied to Becky Pepper-Jackson, meaning any other athletes would need to go through litigation. The West Virginia Secondary School Activities Commission, the Harrison County Board of Education, the state Board of Education and the West Virginia Attorney General have asked to be dismissed from the lawsuit, arguing that they weren't the ones who created the law.
In a July 30 memorandum of law in support of the motion to dismiss, the WVBOE and Superintendent Clayton Burch argued that it is the county board that is the enforcing body – not the state board.
"This provision makes clear that enforcement is by the county board of education, not WVBOE or Superintendent Burch," the memo states. "As a result ... WVBOE and Superintendent Burch have no enforced the statute against Plaintiff and neither will be the party enforcing the statute against Plaintiff in the future."
Last month, a federal judge blocked a new state law that banned transgendered children from participating in school sports pertaining to Pepper-Jackson, who is 11 years old.
Pepper-Jackson, through her mother, filed the lawsuit in May against the West Virginia Board of Education.
In his order, Judge Joseph Goodwin said Pepper-Jackson would be permitted to sign up for and participate in school athletics in the same way as her classmates.
"A fear of the unknown and discomfort with the unfamiliar have motivated many of the most malignant harms committed by our country’s governments on their own citizens," Goodwin wrote. "Out of fear of those less like them, the powerful have made laws that restricted who could attend what schools, who could work certain jobs, who could marry whom, and even how people can practice their religions.
“Recognizing that classifying human beings in ways that officially sanction harm is antithetical to democracy, the states ratified the Fourteenth Amendment."
Goodwin wrote that it ensures that no state may "deny to any person within its jurisdiction the equal protection of the laws."
“This is great news for Becky, and while our work is not done yet, today’s ruling jibes with similar rulings in other courts across the country,” Avatara Smith-Carrington a Tyron Garner Memorial Law Fellow at Lambda Legal said in a news release. “It is our hope that courts recognize and address discrimination when they see it, and nowhere is it more visible than in these stark attacks against trans youth.”
The lawsuit was filed after Justice signed House Bill 3293 into law in April.
"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 stated.
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.
U.S. District Court for the Southern District of West Virginia case number: 2:21-cv-00316