RICHMOND, Va. (CN) — Attorneys representing a 13-year-old transgender girl argued to the Fourth Circuit Friday that West Virginia's ban on transgender girls playing on girls' school sports teams violates Title IX and the Equal Protection Law of the U.S. Constitution.
"The objection here is really to the mere presence of transgender girls on the team, not to any competitive unfairness," attorney Joshua Block of the American Civil Liberties Union, representing the appellant, said.
Becky Pepper-Jackson said she has known she was a girl for as long as she can remember. She had her name and sex legally changed, and her elementary and middle school created gender support plans to ensure she was fully recognized and supported as a girl. The community treated Jackson as a girl in every aspect until, in March 2021, West Virginia passed House Bill 3293, making her participation in her school's track and cross-country teams illegal.
The bill requires school districts to check students' birth certificates and bans any student born as a biological male from participation in girls' sports from middle school through college. Before the bill, the West Virginia Secondary School Activities Commission had a policy allowing transgender girls to participate as long as they weren't a threat to competitive equity.
Jackson sued West Virginia in 2021 and a federal court granted a preliminary injunction preventing H.B. 3293 from being enforced against her, finding Pepper-Jackson was likely to succeed on merit.
"B.P.J. has been able to participate on the girls' cross-country and track teams for three, going on four seasons — all with the support of her family, school, coaches, and teammates," the girl's attorneys wrote in her brief. "Despite regularly finishing near the back of the pack, B.P.J. has experienced the benefits of school sports."
That changed in January, when the lower court reversed course and entered summary judgment against Jackson.
"I have no doubt that H.B. 3293 aimed to politicize participation in school athletics for transgender students," the lower court's memorandum opinion states. "Nevertheless, there is not a sufficient record of legislative animus."
The state argued that the bill aims to help biological girls, not harm transgender girls. U.S. Circuit Judge Toby Heytens, a Joe Biden appointee, found the idea that the law doesn't discriminate regarding the Equal Protection Clause unviable.
"The idea that this law doesn't discriminate on gender identity is, with respect, borderline absurd to me," Heytens told the state's attorney. "I don't know how we can possibly say that a law that is overtly designed to discriminate based on gender identity doesn't discriminate based on gender identity."
The state cited their experts who claim that biological males, even those on puberty blockers and hormone therapy, are athletically superior to biological females.
"Experts established that biological males are, on average, bigger, stronger and faster than biological females," the state's attorneys argue in their brief. "Males throw, hit and kick faster and farther than females."
Block said that the state's categorical ban fails to consider cases like Jackson's, who has never gone through endogenous puberty and, therefore, has never experienced any of the physiological changes consistent with puberty typical of cisgender boys.
U.S. Circuit Judge Pamela Harris, a Barack Obama appointee, questioned this argument.
"Even though there is a disconnect between her personal circumstances and the goals of the law, the state is entitled to paint with a broad brush," Harris said. "This law, even though it doesn't match her circumstances, is not a constitutional frailty."
Block pointed to Grimm v. Gloucester County School Board as a case to remember. In Grimm, a transgender boy sued his school for creating a policy aimed at keeping him from using his preferred bathroom. The courts found the school had discriminated against him and ordered the school board to pay him $1.3 million.
"In Grimm, there was a policy that separated students by what they called biological gender," Block told the three-judge panel. "The court examined whether the stated governmental interest was actually served by excluding Grimm from using the restroom."
U.S. Circuit Judge Steven Agee, a George W. Bush appointee, said the difference is that in Grimm, the government's interest was privacy. In contrast, the governmental interest in H.B. 3293 maintains competitive fairness.
Former West Virginia State University soccer player Lainey Armistead joined the case as an intervenor on behalf of the state. She spoke after the hearing about why she believes the law must stand.
"I had heard about women being displaced in Connecticut from their events, and I was heartbroken," Armistead said. "I couldn't even imagine how it would feel to work my entire life and to just be displaced suddenly by a biological male."
Agee and Block sparred over whether transgender girls' participation harms biological girls.
"If there is no reason for there to be an inherent physiological advantage, then that harm is no different than any other harm of athletics," Block said. "I don't think you get to choose your competitor."
Under the bill, transgender boys are still allowed to compete in biological boy sports. Heytens asserted that allowing one student to participate in either gender's sports and not allowing the other is discrimination based on sex.
Harris examined West Virginia's intent with the bill when considering the state has been passing other legislation affecting transgender youth. In February, West Virginia voted to ban gender-affirming treatments for minors, like the ones Jackson used to block puberty.
"Can I look at this law in the larger context of what's going on?" Harris asked the state's attorney.
Legislation aimed at restricting transgender people's lives has been on the rise in recent years. This rise in criticism of transgender people's lifestyles has correlated with a rise in violence against the transgender community, especially against Black transgender women.
"There is no secret that across many states in this country right now, there's just a wave of laws targeting LGBTQ people in general and trans youth in particular," Block said in an interview.
Agee described the Fourth Circuit as a way station with this case that he believes will likely find its way to the Supreme Court.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
