RICHMOND, Virginia – A federal appeals court has granted a request to stay a lower court decision in a case challenging West Virginia’s ban on transgender athletes.
The United States Court of Appeals for the Fourth Circuit granted the request February 22. The stay will allow Becky Pepper-Jackson to try out for her school’s spring track and field team next week.
The 2-1 order was supported by Judges Pamela Harris and Toby Heytens. Judge Steven Agee dissented from the order.
“We are thrilled that Becky will get to continue to participate in school sports with her classmates, at least for now,” American Civil Liberties Union-WV Managing Attorney Aubrey Sparks said. “Becky has said all along she just wants to run and that she’s taking this stand for other young people like her.”
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.”
Heather Jackson filed her complaint in federal court in May 2021 on behalf of Becky Pepper-Jackson 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, U.S. District Judge Joseph 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 latest 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.”
Last month, 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