Trans kids play sports. Civil rights groups ask where’s the fire?

WASHINGTON (CN) — Civil rights groups urged the Supreme Court on Monday to reject an emergency application from West Virginia seeking to stop a 12-year-old transgender girl from playing sports. 

“This emergency filing by Attorney General Morrissey is a petty and baseless move,” the ACLU, the ACLU of West Virginia and Lambda Legal wrote in a statement that accompanies their response brief. “Requests of this kind are typically reserved for high-stakes, time-sensitive matters — including pending death sentences and matters of national security. A 12-year-old girl playing with her peers is hardly an emergency, and we urge the court to deny the state’s request.”

The ACLU and Lambda Legal are representing Becky Pepper-Jackson — a middle schooler who takes puberty-delaying treatment and estrogen hormone therapy — in her fight to play girls’ sports despite a state ban. According to advocates, Pepper-Jackson has lived like a girl for as long as she can remember and will not experience endogenous puberty. 

West Virginia lawmakers claim meanwhile that female athletes would be hurt if forced to compete against transgender girls like Pepper-Jackson. The state passed the Save Women’s Sports Act to ban all transgender girls from playing girl-only athletic teams. 

Pepper-Jackson sued her school board after the bill was signed into law in 2021. She claims the Save Women’s Sports Act violates her 14th Amendment rights to equal protection as well as Title IX, the federal law prohibiting sex discrimination in education. 

U.S. District Judge Joseph Goodwin ruled against Pepper-Jackson in January. West Virginia turned to the justices for an emergency ruling, however, after the Fourth Circuit sided with the student in a 2-1 vote last month. 

Advocates representing Pepper-Jackson claim West Virginia “filed an emergency application in search of an emergency.” They note that the case before the high court is narrow — only involving Pepper-Jackson, who has participated in girls’ sports for four seasons now. 

“Applicants’ emergency motion fails at every requisite step, including by failing to identify any harm that warrants this Court’s intervention to block B.P.J. from continuing what she has been doing for more than a year and a half,” wrote Kathleen Hartnett, an attorney with Cooley representing Pepper-Jackson. 

Pepper-Jackson has been allowed to participate on her school’s girls’ cross-country and track-and-field teams since she entered middle school, thanks to a preliminary injunction. 

“B.P.J.’s teammates and coaches have welcomed her participation (so much so that B.P.J. now thinks of them as a 'second family'),” Hartnett wrote (Parentheses in original. “No one has been injured as a result of her participation (unsurprisingly, as cross-country and track-and-field events are not contact sports). She has not had any problems with children on other schools’ teams. And she has not ‘dominated’ anything (she consistently finishes at the back of the pack).” 

Advocates note that the school board and superintendent — who were the parties sued by Pepper-Jackson — did not ask the court to intervene. 

Attacking West Virginia’s application, Pepper-Jackson’s advocates claim the state did not demonstrate why the court would grant review in the case when the appeals courts have not addressed the issue yet. 

“Applicants should not be allowed to ‘use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take — and to do so on a short fuse without benefit of full briefing and oral argument,’” Hartnett wrote.

The manner in which West Virginia focused its application — arguing Pepper-Jackson would likely lose on appeal, a merits issue — also brought rancor from Pepper-Jackson's corner. They note that the justices can rule only on the Fourth Circuit’s stay of Goodwin’s ruling. 

West Virginia said the appeals court’s order “upsets the way that things traditionally work in school sports” and risked boys dominating girls’ programs. 

“B.P.J. will not succeed on the merits,” West Virginia Solicitor General Lindsay See wrote in the state’s application. “All parties, B.P.J. included, agree that separated sports teams serve important interests.  Consistent with that starting point, the Act makes the reasonable judgment that many have made before:  Biological differences between males and females matter in sports. Both Title IX and the Fourteenth Amendment allow that judgment.” 

West Virginia’s all-out ban on transgender girls’ participation in girls’ sports differs from other sports regulations on transgender athletes which often set requirements for participation. 

It is unclear when the court could rule on the application. 

Follow @KelseyReichmann

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