A federal appeals court has overturned a West Virginia law requiring students who identify as “transgender” to play on sports teams matching their biological sex.
The American Civil Liberties Union (ACLU) challenged the law in 2021 on behalf of track athlete Becky Pepper-Jackson, a “transgender” eighth-grade student.
The ACLU had argued that Pepper-Jackson was being discriminated against and should be allowed to play with girls because he had not gone through male puberty.
On Tuesday, Fourth Circuit Judge Toby Heytens, who was appointed by Joe Biden, ruled that the law violated transgender athletes’ constitutional rights and violated Title IX.
“The Act’s sole purpose — and its sole effect — is to prevent transgender girls from playing on girls teams,” Heytens wrote in the appellate ruling Tuesday, according to a report from The Hill.
“Offering B.P.J. a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all,” Heytens wrote. “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.”
Ironically, the judge complained that it would not be fair for Pepper-Jackson to play against boys because they are “larger, stronger, and faster” than him. The exact reason the bill was enacted to protect real girls in the first place.
“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,” he wrote. “The Act thus exposes B.P.J. to the very harms Title IX is meant to prevent by effectively ‘exclud[ing]’ her from ‘participation in’ all non-coed sports entirely.”
The Hill noted, “Heytens, who was appointed by President Biden, was joined in the decision by Judge Pamela Harris, an Obama appointee. Judge Steven Agee, who was appointed by former president George W. Bush, concurred in allowing Pepper-Jackson to compete but dissented in the court’s Title IX decision.”
The ACLU celebrated the decision.
“We hope today’s ruling sends a message of hope to the trans youth of West Virginia,” ACLU of West Virginia Director Aubrey Sparks said in a statement. “And a message of warning to politicians who continue to dehumanize this vulnerable population.”
West Virginia Attorney General Patrick Morrisey has promised that the fight to protect girls’ sports is not over.
“I am deeply disappointed in the court’s divided decision today,” Attorney General Morrisey said in a press release. “The Save Women’s Sports Act is ‘constitutionally permissible’ and the law complies with Title IX.”
“I will keep fighting to safeguard 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,” the Attorney General added. “We know the law is correct and will use every available tool to defend it.”
“We remain confident in the merits of our defense. 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.”