West Virginia’s ban on trans sports discriminates against teen athlete, appeals court ruling puts law’s future at risk

An appeals court has ruled that West Virginia’s transgender sports ban violates the rights of a teen athlete under Title IX, the federal law that prohibits gender-based discrimination in schools.

On Tuesday, the 4th US Circuit Court of Appeals ruled that the ban cannot be applied to 13-year-old Becky Pepper Jackson.

The court previously blocked the state’s attempt to kick the teenager from her middle school’s cross country and track and field teams in February 2023.

This came after the American Civil Liberties Union, its West Virginia chapter and the LGBTQ advocacy group Lambda Legal sued the state, the boards of education and their superintendents.

However, Tuesday’s decision does not overturn the ban, which was signed by Gov. Jim Justice in 2021. For now, it only applies to Jackson’s case — but the law could be in limbo if other transgender student-athletes choose to challenge it.

Tuesday’s decision does not overturn the ban, which was signed into law by Gov. Jim Justice in 2021; rather, it applies only to the case of Becky Pepper Jackson

The court noted that Jackson has lived as a girl for over five years. She began identifying as female in the third grade and has participated strictly on girls’ sports teams.

In addition to taking puberty blockers and estrogen hormone therapy, the student has legally changed her name, and the state of West Virginia has issued her a birth certificate listing her as female.

Offering the teenager a ‘choice’ between not participating in sports and participating only in boys’ teams ‘is no real choice’, Judge Toby Heytens wrote in the ruling.

‘The defendants cannot expect BPJ to address 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 by introducing herself to teammates, coaches and even opponents as a boy,’ wrote Heytens.

In a statement, ACLU West Virginia attorney Josh Block called the ruling a “tremendous victory.”

While ACLU-West Virginia spokesman Billy Wolfe noted that Jackson is the only child currently affected by the law, he encouraged other students to contact the chapter’s legal team if they believe they themselves are victims of discrimination.

Title IX was enacted more than five decades ago as a direct challenge to gender discrimination in education

West Virginia is among 24 states that prohibit transgender women and girls from competing in sports consistent with their gender identity

After the decision, West Virginia Attorney General Patrick Morrisey said he was ‘deeply disappointed’ and vowed to continue fighting to protect Title IX.

Passed more than five decades ago, the law was intended to address gender discrimination in education by ensuring that women had equal opportunities to participate in federally funded programs.

“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,” Morrisey said Tuesday. ‘We know the law is correct and will use every tool available to defend it.’

In the ruling, the appeals court confirmed that officials had the authority to create separate sports teams for boys and girls and enforce the boundary between them.

“Nor do we 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 experienced elevated levels of circulating testosterone,” the court stated.

“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 her specific Title IX claims.”

In a dissenting opinion, Judge G. Steven Agee wrote that the state can segregate teams by sex assigned at birth ‘without running afoul of either the Equal Protection Clause or Title IX.’

West Virginia is among the 24 states that prevent transgender women and girls from competing in sports consistent with their gender identity.

The Biden administration originally planned to release a new federal Title IX rule addressing both campus sexual assault and transgender athletes, but chose to split them into separate rules.