West Virginia’s anti-transgender sports ban was struck down by a federal appeals court on Tuesday, affecting one of the almost two dozen states that passed such legislation under GOP leadership in the last several years. The girl in question is thirteen years old.
In a 2-1 ruling, the 4th Fourth Circuit Court of Appeals held that the state cannot “lawfully” enforce its law against transgender athlete Becky Pepper-Jackson, who has been contesting the ban since its implementation in 2021.
A transgender girl who has publicly identified as a girl since third grade and who takes medicine to halt puberty from participating in her school’s cross country and track teams is thirteen years old. The question at hand is whether this prohibition on her participation in these teams may be legitimately enforced under the Act. Along with Judge Pamela Harris, Circuit Judge Toby Heytens stated in the decision that it cannot.
This decision is a huge victory for LGBTQ rights activists, who have been fighting against numerous anti-trans laws passed by Republican-led states in recent years, including laws that make it illegal for children to have gender-affirming medical care.
The “Save Women’s Sports Act” prohibits transgender girls and women from playing on varsity sports teams at public schools in 2021, the year it was signed into law by Republican West Virginia Governor Jim Justice.
The ruling by the majority of the court found that Pepper-Jackson’s rights under Title IX, which forbids sex discrimination in publicly funded institutions, were violated.
In her letter to Heytens, B.P.J. demonstrated that, if the Act were applied to her, she would be unfairly treated based on her sex, denied any significant sports prospects, and treated worse than others in a comparable situation.
In his partial dissent, Judge Steven Agee stated that “allowing transgender girls – regardless of any advantage – as participants in biological girls’ sports turns Title IX on its head and reverses the monumental work Title IX has done to promote girls’ sports from its inception.”
In his dissenting opinion, Agee stated that he would have supported the state’s ability to prosecute Pepper-Jackson. He closed by expressing his hope that the Supreme Court will act swiftly to address these matters of national importance.
Although Pepper-Jackson’s case sought to invalidate the sports ban rather than declare it entirely null and void, lower courts had temporarily halted West Virginia’s enforcement of the legislation against her. The federal judge who had previously halted the bill in 2021 now supports state officials, having flipped his position last year.
West Virginia requested the US Supreme Court last year to allow it to enforce the legislation while lower courts reviewed the case, as the yearslong dispute continued. However, the justices denied in an unsigned opinion. Clarence Thomas and Samuel Alito, two conservative justices, stated they would have approved the motion.
Representing Pepper-Jackson, Joshua Block of the American Civil Liberties Union, stated on Tuesday that the decision by the appeals court “is a tremendous victory for our client, transgender West Virginians, and the freedom of all youth to play as who they are.”
With this verdict, “it also continues a string of federal courts ruling against bans on the participation of transgender athletes and in favor of their equal participation as the gender they know themselves to be,” Block added.
The Republican WV AG, Patrick Morrisey, has stated that his state “will use every available tool to defend it” and that he is committed to upholding the law.
Despite expressing his disappointment with the court’s divided decision, he maintained that the law is “constitutionally permissible” and complies with Title IX. in a statement he released.