Metro Weekly

Court Blocks West Virginia Trans Athlete Ban

A federal appeals court ruled that West Virginia's transgender athlete ban is unconstitutional and violates laws against sex discrimination.

Athletes competing on a track – Photo: Steven Lelham, via Unsplash

On Tuesday, April 16, a federal appeals court voted to block a West Virginia law banning transgender student-athletes from competing on teams that align with their gender identity.

The 4th U.S. Circuit Court of Appeals found that the ban, which was signed into law by Republican Gov. Jim Justice in April 2021, violates the rights of transgender students under Title IX, the federal statute that prohibits sex-based discrimination.

The law was challenged by a slew of civil rights and LGBTQ organizations on behalf of B.P.J., a 13-year-old transgender girl and middle school track and cross-country athlete who wishes to compete as a girl.

B.P.J.’s lawyers claimed the law was unconstitutional and discriminatory.

After initially blocking the law from taking effect, a lower court judge sided with the state, finding that the transgender athlete ban is constitutional and the state had a “legitimate interest” in barring transgender athletes from female sports teams.

However, B.P.J.’s legal team appealed the ruling to the 4th Circuit, which temporarily blocked state officials from enforcing the law. Had it been enforced, it would have resulted in B.P.J. being kicked off her middle school track team. 

West Virginia Attorney General Patrick Morrissey subsequently asked the Supreme Court for an emergency motion allowing the state to kick B.P.J. and similarly-situated transgender athletes off all girls’ sports teams.

But the high court rejected that motion, deciding instead to allow the 4th Circuit to issue a finding on the merits of B.P.J.’s case.

Writing for the appeals court, Circuit Judge Toby Heytens found that the so-called “Save Women’s Sports Act” only prohibits individuals assigned male at birth from competing on female-designated sports teams, writing that “the Act’s sole purpose — and its sole effect — is to prevent transgender girls from playing on girls’ teams.”

Noting that B.P.J. has publicly identified as a girl since third grade and is currently receiving puberty-blocking medication — meaning she has not undergone the physiological changes that would otherwise give her a competitive advantage over cisgender females — Heytens found that B.P.J. had presented evidence suggesting that she possesses “no inherent, biologically-based competitive advantages” over athletes assigned female at birth.

He also declared that a lower district court judge erred in siding with West Virginia officials.

“During this litigation, the defendants have identified two general justifications for excluding transgender girls from girls sports teams: participant safety and competitive fairness,” Heytens wrote. “B.P.J. does not dispute that participant safety and competitive fairness are important government interests; instead, she argues that excluding her from the girls cross country and track teams is not substantially related to either goal.”

Furthermore, Heytens found that, based on the facts of the case, “offering B.P.J. a ‘choice’ between not participating in sports and participating only on boys’ teams is no real choice at all.”

“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. “The defendants do not dispute that doing so would directly contradict the treatment protocols for gender dysphoria.

“It also would expose B.P.J. to the same risk of unfair competition — and, in some sports, physical danger — from which the defendants claim to be shielding cisgender girls,” Heytens continued. “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 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.”

Lawyers for B.P.J. celebrated the decision.

“As the Fourth Circuit made clear in this ruling, West Virginia’s effort to ban one 13-year-old transgender girl from joining her teammates on the middle school cross country and track team was singling out Becky for disparate treatment because of her sex,” Sruti Swaminathan, a staff attorney for youth at Lambda Legal, said in a statement. “That’s discrimination pure and simple, and we applaud the court for arriving at this just decision.”

Joshua Block, a senior staff attorney for the American Civil Liberties Union’s LGBTQ & HIV Project, noted that the positive decision echoes other state or federal appeals court decisions that have blocked other states’ transgender-athlete bans from being enforced.

In total, 25 states have laws or policies that prohibit transgender athletes from competing as the gender by which they identify, with at least four of the bans being blocked. 

“This case is fundamentally about the equality of transgender youth in our schools and our communities, and we’re thankful the Fourth Circuit agreed,” Block said.

Aubrey Sparks, the legal director at the ACLU of West Virginia, said the ruling “sends a message of hope” to transgender youth and a “message of warning to politicians who continue to dehumanize this vulnerable population.”

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