CHARLESTON – West Virginia Attorney General Patrick Morrisey said his office will ask the U.S. Supreme Court to decide if a state law violates the rights of a transgender middle school athlete.
During an April 24 press conference, Morrisey called the case one of the most important his office has handled in his 12 years as AG. Last week, the U.S. District Fourth Circuit Court of Appeals ruling that said the 2021 state law discriminated against a Harrison County middle school track and cross country athlete.
“We will be filing it over the next month, and we want to make sure we’re going to time our filing to maximize the chance that this case is going to be heard and most importantly that we will win,” Morrisey said of the Supreme Court appeal. “We are vigorously defending the law, and that law is reasonable.
Pepper-Jackson
| Courtesy photo
“It’s based on biology, and it’s based on fairness. We are working to defend the integrity of women’s sports. We must protect our young women.”
He said the case is a strong one and needs to be addressed immediately.
“We’re seeing immediate harms to girls from the student’s participation on a team that does not match the student’s biological sex,” Morrisey said, referencing an incident in which five Harrison middle school female athletes refused to compete last week in the shot put at the county championships against Becky Pepper-Jackson, who was the focus of the Fourth Circuit case. “And it isn’t just affecting one person. It’s affecting whole communities.
“It’s my hope that this is going to be an issue that’s going to resonate not only here in West Virginia, but that kind of message is going to carry across our whole country. West Virginia is going to be the point, and we’re going to make sure we prevail in this case.”
In its 2-1 ruling April 16, the U.S. Fourth Circuit Court of Appeals said the state law can’t be applied to Pepper-Jackson because it violates Title IX, the federal civil rights law that prohibits sex-based discrimination in schools. The athlete has identified as a girl and taken puberty blockers since she was in third grade.
Pepper-Jackson has been living as a girl for more than five years and changed her name, and the state has issued her a birth certificate listing her as female. She is, as far as the West Virginia chapter of the American Civil Liberties Union knows, the only transgender athlete in the state affected by the law, which is known as the Save Women’s Sports Act, and the Fourth Circuit ruling.
“It applied specifically to the one person, but we’re obviously tremendously worried about the precedent value and we think it’s important to take that up and make sure that gets reversed,” Morrisey said at Wednesday’s press conference, which also was attended by other politicians and Riley Gaines, a former collegiate swimmer who has been a vocal critic of transgender athletes born male to compete against females.
“Allowing males to compete in women’s sports is risky, it is unfair, and it is discriminatory — and it must stop,” Gaines said at the event.
Morrisey said the Supreme Court wouldn’t act on the case before the May 14 primary election in which he is running for governor after three terms as AG. But the two Republican candidates for Attorney General – state Auditor J.B. McCuskey and state Senator and former U.S. Attorney Mike Stuart – as well as several state lawmakers were on hand.
“I know I could say the case would not be heard before the May primary,” Morrisey said. “Is it possible that it’s heard toward the end of the year? It’s always possible, but it also could be next year. The Supreme Court’s going to have to make that decision.
“I will say this, I want to make sure that whoever sits in the attorney general’s position is going to have the full weight and support of all the resources that that attorney general needs to make the best argument.”
In April 2021, Justice signed House Bill 3293 into law, barring transgender student-athletes from participating on the school athletic teams most consistent with their gender identity.
Pepper-Jackson and her mother Heather Jackson challenged the law soon after it was signed. In January 2023, U.S. District Judge Joseph Goodwin upheld the law, and Pepper-Jackson appealed to the Fourth Circuit. In February 2023, that court blocked the state’s effort to kick Pepper-Jackson off of her team while legal advocates appealed a lower court ruling upholding the 2021 ban. The Fourth Circuit heard arguments in the case in October.
In last week’s ruling, the court said it didn’t find that government officials can’t establish separate sports teams for boys and girls or lack authority to govern those rules.
Transgender rights has become a key topic in this year’s Republican gubernatorial primary. Morrisey and Chris Miller especially have made several advertisements focusing on the issue.
Another Republican candidate – Secretary of State Mac Warner – issued a press release saying Morrisey should step aside from handling this legal battle.
“Patrick Morrisey and I do agree on two things,” Warner said. “First, the Fourth Circuit Federal Court decision that Morrisey lost 2-1 must be appealed to the United States Supreme Court. Second, since the appeal will most likely not be heard till next year, it will be up to the next Attorney General, not Patrick Morrisey, to defend West Virginia’s law on transgender athletes.
“With Patrick Morrisey out of the way, I am confident that West Virginia stands a much better chance of prevailing in the appeal.”
Warner said Morrisey isn’t capable of handling the case.
“He should voluntarily step aside and allow competent legal counsel to defend the West Virginia law that was overwhelmingly passed by the West Virginia Legislature and signed by Governor (Jim) Justice," Warner said. “Attorney General Patrick Morrisey should immediately recuse himself from further representation and involvement in this matter due to conflict of interest.
“Going back years, Patrick Morrisey has represented companies that produce hormone-blocking drugs. West Virginia deserves to be represented in this very important case by someone who is not tainted with competing loyalties and with ties to companies associated with transgender medications.
Patrick Morrisey should step aside and allow another attorney who has not been a lobbyist for Big Pharma to represent the State of West Virginia in appealing this case. Patrick Morrisey should come clean, fully disclose his previous relationship with these companies, and answer questions at a press conference about his lobbying efforts for companies assisting in transgender implementation.”
Miller has released advertising focusing on the same issues.
"I want to be very clear to you and everyone," Morrisey said at Wednesday's press conference. "I have never in my life worked to advance any of those policies. I think it’s despicable what they’re doing, and I think they should be ashamed of themselves. But this is what people do when they’re down and race their behind. They make things up.
"I've been leading these issues over the last 10 years. I want to make sure you have concepts of basic fairness and justice. ... We’ve been leading on these issues, and it’s shameful to see the absolute lies. So we reject them absolutely 100%. They are literally making it up, and it’s shameful that they’re doing so.
"I think that we always stand by women and their rights and to make sure that they know the voices of these girls matter, and I’m gonna stand by them."
Taylor Van Kirk, a spokeswoman for Morrisey’s campaign, also discounted Warner and Miller’s claims.
“Some politicians like to lie, and the candidates running against Morrisey are definitely lying at the highest level,” Van Kirk told The West Virginia Record. “Patrick Morrisey has an unmatched record of fighting for women’s issues. As Riley Gaines said, ‘Morrisey has consistently advocated for women and girls to have access to womens-only sports and spaces.’
“Morrisey has never in his life worked to advance any kind of policies that promote transgender ideology. Morrisey is going to continue being the champion for women when he is elected governor.”