CHARLESTON — The U.S. Supreme Court has rejected an effort in West Virginia to deny transgender student-athletes the ability to play sports.
The application to vacate the injunction was denied April 6, but Justices Samuel Alito and Clarence Thomas dissented in the denial of the application to vacate the injunction.
In the dissent, Alito said West Virginia had asked the court to stay or vacate that order, but the court now denies that request.
"And like the Fourth Circuit, this Court has not explained its reasons for that decision," he wrote. "I would grant the State’s application. Among other things, enforcement of the law at issue should not be forbidden by the federal courts without any explanation."
Alito wrote that in the circumstances present — where a divided panel of a lower court has enjoined a duly enacted state law on an important subject without a word of explanation, notwithstanding that the district court granted summary judgment to the state based on a fact-intensive record — the state is entitled to relief.
"If we put aside the issue of the State’s delay in seeking emergency relief and if the District Court’s analysis of the merits of this case is correct, the generally applicable stay factors plainly justify granting West Virginia’s application," Alito wrote.
In a statement, Alliance Defending Freedom Senior Counsel Christiana Kiefer said the decision by the U.S. Supreme Court did not end the case.
"While we hoped the Supreme Court would lift the injunction that the 4th Circuit imposed — with no explanation — on West Virginia’s women’s sports law, we remain committed to protecting female athletes by continuing to litigate this case in the court of appeals, and across the country through other lawsuits defending women’s sports," she said. "Every woman deserves the respect and dignity that comes with having an equal opportunity to excel and win in athletics."
Kiefer said sports underscore the inherent biological differences between the sexes.
"When society and the law try to ignore reality, people get hurt," she said. "In sports, it’s women and girls who pay the price. Thankfully, a growing number of states are stepping up to protect women’s athletics. Right now, 20 states have enacted laws that protect women and girls from having to compete against males, and polls show that a majority of Americans agree that the competition is no longer fair when males are permitted to compete in women’s sports."
The American Civil Liberties Union, the ACLU of West Virginia, and Lambda Legal also issued a statement applauding the decision.
"We are grateful that the Supreme Court today acknowledged that there was no emergency and that Becky should be allowed to continue to participate with her teammates on her middle school track team, which she has been doing without incident for three going on four seasons, as our challenge to West Virginia’s onerous trans youth sports ban makes its way through the courts," they said in the statement. "This was a baseless and cruel effort to keep Becky from where she belongs–playing alongside her peers as a teammate and as a friend."
NCLR Executive Director Imani Rupert-Gordon also hailed the decision.
"Transgender youth are an integral part of every school across this country," Rupert-Gordon said. "We applaud the Department of Education for recognizing that the law requires that transgender students must be treated fairly and equally and as respected members of their school communities."
West Virginia Attorney General Patrick Morrisey said he was disappointed with the decision and vowed to continue to fight the case on the merits.
"This is a procedural setback, but we remain confident that when this case is ultimately determined on the merits, we will prevail," Morrisey said. "We maintain our stance that this is a common sense law — we have a very strong case. It’s just basic fairness and common sense to not have biological males play in women’s sports."
In April 2021, West Virginia Governor Jim Justice signed House Bill 3293 into law, barring transgender student-athletes from participating on the school athletic teams most consistent with their gender identity.
In May 2021, the American Civil Liberties Union, the ACLU of West Virginia, and Lambda Legal filed a lawsuit challenging the law on behalf of Becky Pepper Jackson, a 12-year-old who would be kicked off her middle school’s track and field team if the law were enforced.
In February, the U.S. Court of Appeals for the Fourth Circuit blocked the state’s effort to kick Jackson off the team as legal advocates appealed a lower court ruling upholding the 2021 ban.
The U.S. Supreme Court did not rule on the merits of the case, so it will continue in the Court of Appeals.
West Virginia is one of 19 states that have banned transgender student-athletes in just the last three years as part of an escalating wave of state-level restrictions on the rights of transgender people. Similar federal lawsuits are pending in Idaho and Tennessee.