CHARLESTON – The attorneys representing a transgender youth who was banned from participating in girls’ sports called last week’s ruling by a federal judge “disappointing.”
“The fact is the equal and fair participation of transgender youth takes nothing away from cisgender youth and helps to maintain a level playing field for all youth,” the January 9 statement, issued by the American Civil Liberties Union, ACLU of West Virginia and Lambda Legal, said. “While we consider our next steps, we extend our heartbreak and solidarity to the transgender West Virginians impacted by this law and the families whose trans youth are being needlessly harmed by it.”
In his 23-page opinion issued January 5, U.S. District Judge Joseph Goodwin said he suspects the aim of House Bill 3293, which was known as the Save Women’s Sports Bill, was “to politicize participation in school athletics for transgender students.”
Goodwin
But, Goodwin said the bill signed into law in 2021 keeps Becky Pepper-Jackson from joining the girls’ cross country and track and field teams at her middle school.
“There is not a sufficient record of legislative animus,” Goodwin wrote. “I find that it is substantially related to an important government interest.”
Heather Jackson filed her complaint in federal court in May 2021 on behalf of her daughter 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.
Goodwin says 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 breaks 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 says 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 discusses “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 says 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 says 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 addresses 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 addresses 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."
U.S. District Court for the Southern District of West Virginia case number: 2:21-cv-00316