RICHMOND, Virginia – A transgender student from Harrison County can continue to participate on her school’s track team, a federal court has ruled.
Earlier this month, the Fourth U.S. Circuit Court of Appeals denied a bid by West Virginia Attorney General Patrick Morrisey to allow the state to enforce a ban on transgender student participation in school sports.
In April 2021, Gov. 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.
Morrisey
The student, Becky Pepper Jackson, and her mother Heather Jackson challenged the law. In January, U.S. District Judge Joseph Goodwin upheld the law. Pepper Jackson appealed to the Fourth Circuit. In February, that court blocked the state’s effort to kick Pepper Jackson off of the team while 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.
In its ruling earlier this month, the Fourth Circuit rejected Morrisey’s assertion that Pepper Jackson’s improvement in discus and shotput was unfair to her teammates and she should be ineligible to participate. Judge Steven Agee, an appointee of former President George W. Bush, dissented.
“We believe it was important for the court to consider the most up-to-date information bearing on the injunction,” John Mangalonzo, spokesman for West Virginia Attorney General Patrick Morrisey’s office, told The West Virginia Record. “Since the Fourth Circuit’s injunction six months ago, BPJ has gone from finishing near the back of the pack in track-and-field events, to regularly finishing in the top 10. Two girls on the team were not able to compete in championship events because a biological male took two of the school’s limited slots.
“West Virginia’s common sense law was meant to avoid unfair results like these. Regardless of the recent limited ruling to leave the court’s injunction in place, we look forward to oral arguments on the merits of this case later this year.”
In April, the U.S. Supreme Court denied the state’s application to vacate the injunction. 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.
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.