Appeals court rules West Virginia transgender sports ban discriminatory

Correction: West Virginia’s ban on transgender students joining sports teams discriminated against a middle school athlete, an appeals court ruled Tuesday. A previous headline on this article contained incorrect information.

A federal appeals court ruled a West Virginia law banning transgender students from sports teams consistent with their gender identity discriminated against a middle school athlete, overturning a lower court ruling Tuesday.

The American Civil Liberties Union (ACLU) challenged the measure in 2021 shortly after it was signed into law, claiming that it discriminated against transgender students. The organization brought the suit on behalf of eighth grade track athlete Becky Pepper-Jackson.

The ACLU argued that because the student had not undergone male puberty, there was no inherent advantage to Pepper-Jackson competing against athletes born as females, so she should be allowed to compete. 

Fourth Circuit Judge Toby Heytens agreed with the ACLU, overturning a lower court ruling, and went a step further by ruling that the law violates Title IX protections. A district court initially allowed Pepper-Jackson to compete on the school’s track team but reversed its ruling early last year.

“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.

“Offering B.P.J. a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all,” he continued. “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 added that Pepper-Jackson was treated “worse than” other athletes because she is transgender, finding that the state’s attempts to ban the middle schooler from her track team counted as sex-based discrimination in violation of Title IX.

“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.”

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 same court blocked the law from being enforced early last year. The Supreme Court declined to hear an appeal on the case.

The appeals court judges clarified that its ruling was specific to the claims from Pepper-Jackson.

“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 court wrote.

“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.”

Tuesday’s ruling was lauded by the ACLU as a victory for transgender West Virginians.

“We hope today’s ruling sends a message of hope to the trans youth of West Virginia,” ACLU of West Virginia Director Aubrey Sparks wrote in a statement. “And a message of warning to politicians who continue to dehumanize this vulnerable population.”

West Virginia Attorney General Patrick Morrisey (R) vowed to “continue the fight” to enforce the legislation.

“I am deeply disappointed in the court’s divided decision today,” Morissey said in a statement. “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,” he continued. “We know the law is correct and will use every available tool to defend it.”

Updated: 4:38 p.m.