CHARLESTON – West Virginia Attorney General Patrick Morrisey’s office has filed a petition with the U.S. Supreme Court to overturn the 4th Circuit Court’s ruling regarding the state’s Save Women Sports Act.
Morrisey made the announcement July 11 during an afternoon press conference. Joining him at the event was Lainey Armistead, a former West Virginia State University soccer player who intervene in the case.
The AG said the law is meant to protect fairness and safety for girls and women in sports.
Morrisey
| File photo
“Back in April, the 4th Circuit handed down a 2-1 ruling that reversed an earlier decision upholding the West Virginia’s Save Women’s Sports Act,” Morrisey said. “I promised back then that I would keep fighting for the safety, wellbeing and fairness in women’s sports, and now I’m keeping that promise.
“We are confident in the merits of our defense of this obviously constitutionally permissible law, which through and through complies with Title IX and the Constitution — that’s why we are taking this to the Supreme Court.
Morrisey called the act, which was passed in 2021, a “common-sense law.”
We will be using all of our legal tools to defend this,” he said. “We must protect our young women. This is a case about fair play. It’s just that simple.
“We need the Supreme Court to weigh in and do the right thing, and we think they will.”
In April, the 4th Circuit Court of Appeals ruled the transgender sports ban violates the federal rights of one teen athlete. It said the act can’t be applied to 13-year-old Becky Pepper Jackson because it violates Title IX, the federal civil rights law that prohibits sex-based discrimination in schools.
Jackson has identified as a girl and taken puberty blockers since she was in third grade. Last year, the same court blocked an attempt to kick Jackson off of her middle school cross country and track and field teams. She 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.
Jackson 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 and the 4th Circuit ruling.
In the 4th Circuit opinion, Judge Toby Heytens said offering Jackson a choice between not participating in sports or participating on boys teams “is no real choice at all.”
“The defendants cannot expect that B.P.J. will countermand her social transition, her medical treatment, and all the work she has done with her schools, teachers, and coaches for nearly half her life by introducing herself to teammates, coaches, and even opponents as a boy,” Heytens wrote. “B.P.J. has shown that applying the act to her would treat her worse than people to whom she is similarly situated, deprive her of any meaningful athletic opportunities, and do so on the basis of sex.
“That is all Title IX requires.”
The American Civil Liberties Union and Lambda Legal sued West Virginia in 2021 after the bill was signed into law.
“As the Fourth Circuit made abundantly clear, our client deserves the opportunity to participate in sports teams without discrimination," a statement from the ACLU, ACLU-WV, Lambda Legal and Cooley law firm said Thursday after Morrisey announced the U.S. Supreme Court filing. "We will make our position clear to the court and continue to defend the right of all students to play as who they are.”
Other than the Jackson case, Morrisey’s office says the state ban remains in effect.
“We remain confident in the merits of our defense,” Morrisey said. “We are resolute in protecting opportunities for women and girls in sports because when biological males win in a women’s event — as has happened time and again — female athletes lose their opportunity to shine.”
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.
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 Jackson appealed to the Fourth Circuit. In February 2023, that court blocked the state’s effort to kick 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 today’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.
“We also do not hold that Title IX requires schools to allow every transgender girl to play on girls teams, regardless of whether they have gone through puberty and experienced elevated levels of circulating testosterone,” the opinion states. “We hold only that the district court erred in granting these defendants’ motions for summary judgment in this particular case and in failing to grant summary judgment to B.P.J. on her specific Title IX claim.”
In his dissent, Judge G. Steven Agee said West Virginia can separate teams by gender assigned at birth “without running afoul of either the Equal Protection Clause or Title IX.” He said the ruling “turns Title IX on its head and reverses the monumental work Title IX has done to promote girls’ sports from its inception.”
“B.P.J. displaced at least 100 biological girls at track-and-field events and pushed multiple girls out of the top 10,” Agee wrote. “Similarly, by making the conference championships in two events (something reserved for the top three girls on a team), B.P.J. took away at least two biological girls’ opportunities to participate in the conference championships. And this was in a single season.
“Thanks to the new-found rubric of today’s majority opinion, such displacement will become commonplace.”
An attorney for Alliance Defending Freedom, which supported Morrisey’s argument in the case, said the ruling “strips West Virginia of its ability to protect fairness in women’s sports.”
“Women and young girls deserve to compete on a level playing field,” Rachel Rouleau said. “The court’s decision undermines equal opportunities and contradicts both biological reality and common sense. Title IX was designed to provide women with fair competition, and West Virginia’s women’s sports law does the same. …
“The Fourth Circuit fell prey to activists who are pushing an ideology over what is just for women and girls. We are considering all legal options to protect women’s sports, including an appeal of this decision.”
West Virginia is one of at least 24 states with laws keeping transgender women and girls from competing in certain sports. The other states are Alabama, Arkansas, Florida, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and Wyoming.