RICHMOND, Virginia – West Virginia Attorney General Patrick Morrisey’s office defended the state’s Save Women’s Sports Act and a previous district court victory during arguments before the Fourth Circuit Court of Appeals.
“It’s important to keep safeguarding Title IX and protecting women’s sports so that females have a truly fair playing field,” Morrisey said following the October 27 hearing. “The act protects that fair playing field as well as safety for women and girls in West Virginia.
“We stand by the January decision that this law is constitutional.”
In January, U.S. District Judge Joseph Goodwin upheld the law, saying the state Legislature’s definition of “girl” and “woman” in the context of House Bill 3293, the Save Women’s Sports Act, is “constitutionally permissible” and that the law complies with Title IX.
Under the bill, all biological males, including those who identify as transgender girls, are prohibited from participating on girls’ sports teams. Goodwin earlier had instated a preliminary injunction but after reviewing the weighty record, reversed course and found the law permissible.
In August, an appeals court reinstated a preliminary injunction that allowed Becky Pepper-Jackson, a transgender student at Bridgeport Middle School who is challenging HB 3293, to continue participating on girls’ sports teams until it rules on her appeal.
Morrisey’s office says the act doesn’t mention transgender status. Instead, the marker is biological sex, which recognizes that there are distinct differences between males and females. Further, Title IX prohibits discrimination on the basis of biological sex, not gender identity.
“The law is simple and correct, and we will adamantly defend it,” Morrisey said. “If we have to take this fight all the way to the U.S. Supreme Court, then that is exactly what we’ll do.”
In other sports-related news involving the AG’s office:
* Morrisey is questioning the NCAA for denying a waiver to RaeQuan Battle, barring the student-athlete from playing basketball for West Virginia University.
“The recent decision to deny RaeQuan Battle’s eligibility to play basketball at West Virginia University this season raises serious legal issues that demand answers,” Morrisey said. “Like many WVU fans and citizens of West Virginia, I was dismayed by this move and am hopeful it can still be fixed in time for the 2023-24 season.”
On October 23, the NCAA denied the waiver of immediate eligibility for Battle, a fifth-year senior who transferred to WVU after two seasons at Montana State. WVU has filed an appeal to the NCAA.
Earlier this month, North Carolina wide receiver Tez Walker was granted eligibility by the NCAA after it originally had rejected his appeal. That happened after North Carolina Gov. Roy Cooper and Attorney General Josh Stein sent letters to the NCAA asking it to reconsider the waiver. The Kent State transfer was ruled eligible after the NCAA said it received new information not previously made available by UNC.
West Virginia Gov. Jim Justice has said he also will write a letter to the NCAA about Battle’s situation.
“We are engaged on this matter and will be weighing in more formally in the days ahead. We want to make sure the right things happen for RaeQuan and WVU, and that any action taken is consistent with the rule of law. As the Attorney General of West Virginia, I take our antitrust authority seriously and will take all appropriate steps to ensure our laws are followed.”
* Morrisey also recently signed on to a lawsuit asking the U.S. Supreme Court to review a case involving Major League Baseball’s century-old antitrust exemption that allowed the league to cut 40 minor league ball clubs during a 2020 minor league contraction.
Included in list of the clubs that were cut were Charleston Dirty Birds, which were affiliated with the Seattle Mariners, Bluefield Ridge Runners (Toronto Blue Jays), Princeton WhistlePigs (Tampa Bay Rays) and the West Virginia Black Bears (Pittsburgh Pirates). The Princeton Baseball Association announced earlier this month the recently completed 2023 season of the Princeton WhistlePigs will be the last.
The Supreme Court created the exemption in a 1922 ruling that said baseball games were outside the reach of U.S. competition law. Yet the ruling weakened the ability of states to enforce antitrust laws against MLB. A group of Republican senators recently proposed legislation to remove MLB’s antitrust exemption.
The coalition of 17 states and the District of Columbia is asking the Supreme Court to reconsider MLB’s exemption, arguing judge-made antitrust exemption cannot preempt state antitrust enforcement without violating basic federalism principles; it’s about protecting state antitrust powers against inappropriate federal incursion.
“In all aspects of business, and that includes the business of baseball, competition is key to a healthy marketplace, which is the philosophy of the antitrust laws,” Morrisey said. “This exemption effectively ties our hands behind our backs, preventing states from enforcing our own antitrust laws.”
