West Virginia Takes Transgender Sports Ban Fight to Supreme Court

‘We’re working to defend the integrity of women’s sports. We must protect our young women,’ said West Virginia Attorney General Patrick Morrisey.
West Virginia Takes Transgender Sports Ban Fight to Supreme Court
Riley Gaines (C) and West Virginia Attorney General Patrick Morrisey (R) speak at a press conference in the state Capitol in Charleston, W.Va., on April 24, 2024, in a still from video. (West Virginia Attorney General's Office/Screenshot via NTD)
Tom Ozimek

West Virginia Attorney General Patrick Morrisey has vowed to appeal an unfavorable court ruling overturning the state’s transgender sports ban all the way to the U.S. Supreme Court, with athlete and policy advocate Riley Gaines joining him in calling for protections for women’s sports.

“We’re not going to allow the elites in the swamp to impose their values on West Virginia citizens,” Mr. Morrisey said at a press conference in the state Capitol in Charleston on April 24, during which he said his office would soon be filing a petition with the Supreme Court challenging last week’s court ruling that overturned West Virginia’s transgender sports ban.
The Fourth Circuit Court of Appeals issued an order and opinion on April 16 that blocks enforcement of West Virginia’s Save Women’s Sports Bill on grounds that the law violated the constitutional rights of the plaintiff, a 13-year-old eighth-grade athlete who was born male but identifies as female.
The American Civil Liberties Union (ACLU) brought the lawsuit that challenged the law on behalf of Becky Pepper-Jackson, the student who was prevented from joining the girls’ cross-country and track and field teams. The law banned students from participating in single-sex sports teams that don’t match their biological sex.
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Calling the case one of the most important cases that his office his handled in more than a decade, Mr. Morrisey defended the Save Women’s Sports Bill as “reasonable.”

“It’s based on biology and it’s based on fairness,” he said. “We’re working to defend the integrity of women’s sports. We must protect our young women,” he continued, adding that, “every time a biological male competes, he takes away an opportunity from a biological girl.”

Mr. Morrisey added that it’s not just a question of fairness, but of safety, noting that boys are stronger and faster than girls even if they didn’t go through puberty, and so protections like the ones afforded by the Save Women’s Sports Bill are necessary.

He insisted that the appeals court got the ruling “badly wrong” and that he would time his appeal to the Supreme Court to give it the best chance of being heard—and winning.

Safety Risk for Women and Girls

Ms. Gaines shared her experience of being a collegiate swimmer who competed against Lia Thomas, a male who identifies as female, and pointed to the safety risks associated with men being allowed into women’s sports.

“Not only do women have to worry about losing opportunities and being exploited in locker rooms, but allowing men into women’s sports also puts girls at greater risk of injury,” she said. Acknowledging that sports injuries can and do happen when women compete against women, Ms. Gaines insisted that “allowing males to play in women’s sports increases the likelihood and severity of such injuries.”

Jack Jarvis, communications director for Fairness West Virginia, said that Mr. Morrisey’s statements about transgender youth contribute to a hostile environment with increased harassment, bullying, and discrimination.

“If you want to support women, you need to support all women,” Mr. Jarvis said, according to The Associated Press. “Becky and all of the other trans youth across our state deserve to fully participate in school activities and athletic events.”

The 13-year-old transgender student continues to participate in girls running sports.

After the Save Women’s Sports Bill was signed into law by West Virginia Gov. Jim Justice in 2021, it was quickly challenged in court by the ACLU.

The group argued that Becky Pepper-Jackson (referred to in court filings by the initials B.P.J.) never underwent male puberty and so doesn’t have any athletic advantage over naturally-born girls. B.P.J. was diagnosed with gender dysphoria in 2019 and was treated with puberty blockers followed by “gender-affirming” hormone therapy.

The ACLU claimed that the West Virginia law discriminated against children like B.P.J. “on the basis of sex and transgender status” in violation of the U.S. Constitution and Title IX, including the Equal Protection Clause of the 14th Amendment, which prohibits a state from denying a person within its jurisdiction “equal protection of the laws.”

Legal Wrangling

Initially, Southern District of West Virginia Judge Joseph R. Goodwin, a Clinton appointee, issued a preliminary injunction in July 2021, temporarily blocking the transgender sports ban. However, Judge Goodwin later reversed this decision, ruling that the law is “constitutionally permissible.”
Judge Goodwin noted in his 21-page order that, because not all transgender girls take puberty blockers like B.P.J., a law that protects female sports and athletes based on biological sex classifications is valid because “biological males generally outperform females athletically” and the government has an important interest in “providing equal athletic opportunities for females.”
However, upon appeal, the Fourth Circuit reinstated Judge Goodwin’s initial injunction, temporarily blocking the law once again. That decision was then appealed to the U.S. Supreme Court, which refused to lift the block and reinstate the transgender sports ban, allowing B.P.J. to compete on the girls team while effectively kicking the case back to the Fourth Circuit for a final decision.

The Fourth Circuit heard oral arguments in the case in October 2023 and issued its final decision on April 16, 2024, reversing the transgender sports ban and ruling that it violates Title IX protections.

“The Act’s sole purpose—and its sole effect—is to prevent transgender girls from playing on girls teams,” Fourth Circuit Judge Toby Heytens, a Biden appointee, wrote in the 68-page ruling.

The judge argued that offering B.P.J. a choice between participating on boys teams in line with their biological sex “is no real choice at all” because of all the transgender treatments B.P.J. had undertaken, and that it’s unreasonable to expect a reversal of these changes.

Judge Heytens said that West Virginia’s transgender sports ban amounted to sex-based discrimination that violates Title IX protections.

“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 judge 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 ACLU hailed the ruling while Mr. Morrisey decried it and vowed to continue to fight for the integrity of women and girls sports, leading to his Wednesday pledge to appeal to the Supreme Court.

West Virginia is one of at least 24 states with laws that prohibit biological males from competing in certain women’s or girls sports competitions.

“If we allow this decision to stand, then those laws are in danger, too,” Mr. Morrisey said during the news conference.

Tom Ozimek is a senior reporter for The Epoch Times. He has a broad background in journalism, deposit insurance, marketing and communications, and adult education.