CHARLESTON, W.Va. (AP) — West Virginia’s ban on transgender sports violates a teenage athlete’s Title IX rights, the federal civil rights act that prohibits sex-based discrimination in schools, an appeals court ruled Tuesday.
The U.S. Fourth Circuit Court of Appeals ruled 2-1 that the law could not be applied to a 13-year-old child who had been taking drugs to block puberty and publicly identified as a girl since she was in the third grade.
In February 2023 the court was blocked the state’s attempt to kick Becky Pepper Jackson from the high school cross country and track and field teams if the law is enforced.
Judge Toby Haytens wrote that offering her a “choice” between not participating in the sport and participating only in boys’ teams was “not a real choice at all”.
“The defendants cannot expect BPJ to counter her social transition, her medical treatment and all the work she has done with her schools, teachers and coaches for almost half of her life, presenting herself to teammates, coaches and even opponents as boy,” Haytens wrote.
The court ruled in favor of the American Civil Liberties Union, its West Virginia branch, and the LGBTQ interest group Lambda Legal. They filed a lawsuit state, county boards of education and their superintendents in 2021 after Republican Gov. Jim Justice signed the bill into law.
“This is a huge victory for our client, transgender West Virginians, and the freedom of all youth to play as who they are,” ACLU West Virginia attorney Joshua Block said in a statement.
The court noted that Jackson lived as a girl for more than five years and changed her name, and the state of West Virginia issued her a birth certificate listing her as female. The court was told she was taking drugs to block puberty and estrogen hormone therapy. Starting in elementary school, she only participated in girls’ athletic teams.
“The BPJ has shown that applying the action to her would treat her worse than similarly situated people, would deprive her of any meaningful sporting opportunity, and that would be based on gender. That is all Title IX requires,” Haytens wrote.
Although the ruling makes clear that the law is discriminatory, ACLU-West Virginia spokesman Billy Wolfe said in a statement, “to our knowledge, our client is the only child currently affected by this law. If others find themselves in this situation, we encourage them to contact the ACLU-WV legal team.”
West Virginia Attorney General Patrick Morrissey is “deeply disappointed” by the decision, the Republican said. His office said that except for the specific case decided on Tuesday, the ban remains in place.
“I will continue to fight to protect Title IX. We must continue to work to protect women’s sports so that women’s safety is ensured and girls have a truly fair playing field,” said Morrissey. “We know the law is right and we will use every tool available to protect it.”
In January 2023, a federal judge canceled a preliminary restraining order issued in July 2021. The judge also ruled that the state’s transgender law did not violate Title IX.
The appeals court noted that it did not find that state officials were prohibited from creating separate sports teams for boys and girls or that they had no authority to control the line drawn between those teams.
“We also do not believe that Title IX requires schools to allow any transgender girl to play on girls’ teams, regardless of whether they have gone through puberty and have 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 BPJ on its specific Title IX claim.”
Dissenting Justice G. Stephen Agee wrote that the state could separate teams by sex assigned at birth “without violating the Equal Protection Clause or Title IX.”
Sports participation has been one of the main fronts in legislative and legal battles in recent years over the role of transgender people in US public life. Most Republican-controlled states passed participation restrictions as well as bans on gender-affirming health care for minors. Several have also restricted which bathrooms and locker rooms transgender people can use, especially in schools.
West Virginia is one of at least 24 states with a law that prohibits transgender women and girls from competing in certain sports for women or girls.
The bans are in effect in Alabama, Arkansas, Florida, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and Wyoming.
In addition to West Virginia, judges temporarily stayed the bans in Arizona, Idaho and Utah. But the 2nd circuit revive a challenge last year of Connecticut’s policy to allow transgender girls to compete in girls’ sports, sending it back to a lower court without ruling on its merits.
Ohio’s ban is set to go into effect later this month.
The Biden administration originally planned to release a new federal rule, Title IX, that would address both campus sexual assault and transgender athletes. Earlier this year, the department decided to separate them into separate rules, and the athletics rule now remains in limbo.
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This story has been corrected to show that the court found the ban to discriminate against the teenage athlete, but did not overturn it.
