Metro Weekly

Federal judge blocks West Virginia’s transgender athlete ban from taking effect

Judge finds transgender cross country runner likely to succeed in proving the law is discriminatory and unconstitutional.

A cross country runner on a trail – Photo: Nathalie Désirée Mottet, via Unsplash.

A federal judge has blocked a West Virginia law barring transgender student-athletes in K-12 schools and state colleges and universities from competing on sports teams that align with their gender identity.

On Wednesday, U.S. Circuit Judge Joseph Goodwin, of the Southern District of West Virginia, issued a preliminary injunction blocking state and local officials, including the West Virginia State Board of Education, the Harrison County Board of Education, the West Virginia Secondary School Activities Commission, and Attorney General Patrick Morrissey, from attempting to enforce the law by restricting transgender students to playing on teams matching their assigned sex at birth.

Becky Pepper-Jackson, an 11-year-old seeking to try out for the girls’ cross country team at her middle school, and her mother, Heather, sued to challenge the law, arguing that the law discriminates against Pepper-Jackson based on her sex and gender identity, violating her rights under both Title IX of the Education Amendments Act of 1972 and the Fourteenth Amendment to the U.S. Constitution.

In a 15-page order, Goodwin ruled that the law is likely to be found to be discriminatory and unconstitutional, violating  Pepper-Jackson’s right to equal protection under the law and violating Title IX’s prohibitions on sex-based discrimination. He also noted that his ruling applies only to Pepper-Jackson, saying that the question of the law’s constitutionality, as it applies to other athletes, would be explored later.

“That B.P.J. is being excluded from school athletics on the basis of her sex is clear. Like the Fourth Circuit’s decision in Grimm, I ‘have little difficulty holding’ that [the law] discriminates against her ‘on the basis of sex,'” wrote Goodwin. “The law could not exclude B.P.J. from a girls’ athletics team without referencing her ‘biological sex’ as defined in the statute. Her sex ‘remains a but-for cause’ of her exclusion under the law.

“Again, as in Grimm, I also have little difficulty finding that B.P.J. is harmed by this law,” Goodwin continued. “All other students in West Virginia secondary schools — cisgender girls, cisgender boys, transgender boys, and students falling outside of any of these definitions trying to play on the boys’ teams — are permitted to play on sports teams that best fit their gender identity. Under this law, B.P.J. would be the only girl at her school, as far as I am aware, that is forbidden from playing on a girls’ team and must join the boys’ team. Like the discriminatory policy in Grimm, this law both stigmatizes and isolates B.P.J.”

Goodwin also rebutted several of the arguments put forth by supporters of the law, noting that Pepper-Jackson is receiving puberty blockers, and thus, will not benefit from the inherent physical advantages that would come with puberty and the development of secondary sex characteristics, including higher concentrations of testosterone. He also rejected the claim that her ability to participate would take away athletic opportunities from other girls, due to the small number of transgender students who actually participate in sports. And he pushed back against claims that her participation in cross country and track and field — non-contact sports — would threaten the physical safety of cisgender athletes who compete against her.

“At this point, I have been provided scant evidence that this law addresses any problem at all, let alone an important problem,” Goodwin wrote. “When the government distinguishes between different groups of people, those distinctions must be supported by compelling reasons.”

See also: Human Rights Campaign will sue Florida over anti-transgender sports ban

West Virginia is one of several states that have passed restrictions on transgender athletes’ ability to compete on teams matching their gender identity this year, after such bills were introduced in nearly three dozen state legislatures. A similar law that was passed in Idaho last year has been blocked from taking effect by a federal judge, and, earlier this year, a federal court in Connecticut dismissed a lawsuit challenging that state’s policy allowing transgender girls and women to compete as females.

The U.S. Supreme Court recently refused to hear an appeal of a lower court decision finding that a Virginia school district discriminated against a former transgender student when it barred him from using the boys’ restroom at school. By refusing to hear the case, and keeping the lower court’s decision intact, the high court made that case’s key finding — that transgender students are protected from discrimination by federal law — binding precedent in the 4th U.S. Circuit Court of Appeals, which covers the states of Virginia, West Virginia, North Carolina, and South Carolina. 

Pepper-Jackson and her lawyers celebrated Goodwin’s decision to grant the preliminary injunction.

“I am excited to know that I will be able to try out for the girls’ cross-country team and follow in the running shoes of my family,” Becky Pepper-Jackson said in a statement. “It hurt that the State of West Virginia would try to block me from pursuing my dreams. I just want to play.”

“This decision essentially means is that Becky will be able to try out for the girls’ cross country team and be able to play,” Avatara Smith-Carrington, a Tyron Garner Memorial Law Fellow for Lambda Legal, which is one of the legal organizations representing Pepper-Jackson, said in a statement. “This is a really great early win.

“For me, personally, something that was really beautiful to read that I just keep going back to is the first page of the opinion, where there’s an opening two paragraphs that point out the current environment that we’re in right now, and the ways that these sports bans impact trans youth, and, specifically, with respect to West Virginia, young trans girls,” they added.

In those opening paragraphs, Goodwin wrote, from a historical perspective, that “fear of the unknown and discomfort with the unfamiliar have motivated many of the most malignant harms committed by our country’s governments on their own citizens,” and ultimately sided with opponents of the law, who have argued that it “was enacted to incite fear and exclude certain persons rather than to address a legitimate government interest.”

“Becky — like all students — should have the opportunity to try out for a sports team and play with her peers,” Josh Block, a senior staff attorney with the American Civil Liberties Union’s LGBTQ & HIV Project, another organization representing Pepper-Jackson in court, said in a statement. “We hope this also sends a message to other states to stop demonizing trans kids to score political points and to let these kids live their lives in peace.”

“We’ve said all along this cruel legislation would not survive a legal challenge, and we’re encouraged by the court’s decision today,” Loree Stark, the legal director of the ACLU of West Virginia, added. “We hope trans kids throughout West Virginia who felt attacked and wronged by the passage of this legislation are feeling empowered by today’s news.”

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