A federal appeals court has overturned West Virginia’s transgender sports ban, the so-called Save Women’s Sports Act. The state’s attorney general will likely appeal the ruling, but the U.S. Supreme Court declined to hear a similar case from the same appeals court in early 2023.
The Fourth Circuit Court of Appeals disagreed with an earlier district court ruling upholding the ban. Appeals Court Judge Toby Heytens ruled that the state’s ban amounts to sex-based discrimination against the plaintiff, an 8th grade trans girl and track athlete named Becky Pepper-Jackson. Such discrimination violates Title IX, a federal law prohibiting sex discrimination in schools, Pepper-Jackson said.
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Pepper-Jackson’s lawyers with the American Civil Liberties Union (ACLU) argued that, because she had not yet undergone male puberty, she had no physical advantages over the other girls competing.
“B.P.J. has been recognized by her community and legally changed her name, and West Virginia has issued a birth certificate listing her sex as female,” Heytens wrote in his ruling. “Offering B.P.J. a ‘choice’ between not participating in sports and participating only 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,” the judge added. “By participating on boys teams, B.P.J. would be sharing the field with boys who are larger, stronger, and faster than her because of the elevated levels of circulating testosterone she lacks. The Act thus exposes B.P.J. to the very harms that Title IX is meant to prevent.”
The judge specified that his ruling was only based on Pepper-Jackson’s situation, and that Title IX doesn’t require schools to allow every trans girl to play on girls’ teams, regardless of whether they’ve experienced puberty and or elevated testosterone levels.
“This is a tremendous victory for our client, transgender West Virginians, and the freedom of all youth to play as who they are,” Joshua Block, senior staff attorney for the ACLU, wrote of the ruling. “It also continues a string of federal courts ruling against bans on the participation of transgender athletes and in favor of their equal participation as the gender they know themselves to be.”
Similar bans have been blocked in Arizona, Idaho, Ohio, and Utah.
Aubrey Sparks, legal director of the ACLU of West Virginia, wrote, “We hope today’s ruling sends a message of hope to the trans youth of West Virginia and a message of warning to politicians who continue to dehumanize this vulnerable population.”
West Virginia Attorney General Patrick Morrisey said he was “disappointed” by the ruling, claiming that his state’s ban is “constitutionally permissible” and the law complies with Title IX.”
“We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field,” Morrisey continued. “We know the law is correct and will use every available tool to defend it.”
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