West Virginia transgender athlete ban blocked by appeals panel

A federal appeals panel this week blocked the enforcement of a West Virginia law barring transgender female athletes from competing on girl’s or women’s sports teams.

The 4th U.S. Circuit Court of Appeals ruled 2-1 on Wednesday to reinstate an injunction first issued in July 2021, halting a lower court’s order to dissolve a preliminary injunction last month.

West Virginia House Bill 3293, also known as the “Save Women’s Sports Bill,” prohibits transgender women and girls from participating on female sports teams in public middle schools, high schools and universities.

District Court Judge Joseph R. Goodwin, who issued the initial injunction, last month reversed course, ruling that the 2021 law signed by West Virginia Gov. Jim Justice (R) is “constitutionally permissible” because the state legislature’s definitions of “woman” and “girl” are “substantially related to the important government interest of providing equal athletic opportunities for females.”

For the purposes of school sports, West Virginia defines both “woman” and “girl” as an individual who is “biologically female.”

Attorneys for Becky Pepper-Jackson, the 11-year-old transgender girl at the center of the legal battle against the law, argued in response to Goodwin’s January ruling that the case’s defendants had incorrectly suggested that the classification at issue is the creation of separate sports teams for boys and girls.

“It is not,” they wrote. “School sports already were sex-separated in West Virginia before H.B. 3293. H.B. 3293 explicitly references ‘gender identity’ in its legislative findings and creates a definition of ‘biological sex’ that, by design and effect, targets B.P.J. as a girl who is transgender and categorically excludes her from participating consistent with her gender identity.”

“It is that categorical transgender exclusion — not sex separation in sports — that B.P.J. challenges. And it is that exclusion — not the differential treatment of cisgender girls compared to cisgender boys — that must pass muster under Title IX and equal protection scrutiny.”

Wednesday’s order will allow Pepper-Jackson to try out for her school’s spring track and field team on Feb. 27.

“We are thrilled that Becky will get to continue to participate in school sports with her classmates, at least for now,” Aubrey Sparks, the American Civil Liberties Union (ACLU) of West Virginia managing attorney, said Thursday in a statement. “Becky has said all along she just wants to do the thing she loves with her friends and that she’s taking this stand for other young people like her.”