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Transgender athlete wins Supreme Court spat over West Virginia sports ban

West Virginia wanted help from the justices to stop a transgender 12-year-old from competing on the girls’ track and field team at school.

WASHINGTON (CN) — The Supreme Court on Thursday shot down an emergency application from West Virginia that would have forced a middle schooler off of a girls' sports team because she is transgender. 

After a lower court had thrown ice on the state’s law banning transgender girls from participating in girls' sports, West Virginia applied to the justices for emergency relief. Though the court declined that invitation, Justice Samuel Alito dissented in an opinion joined by Justice Clarence Thomas. 

Alito said the application presented an important issue the court would likely review in the future, and, therefore, the court should have granted West Virginia’s request. He also underscored the failure to address why West Virginia's law has been blocked. 

“And like the Fourth Circuit, this Court has not explained its reasons for that decision,” the Bush appointee wrote. 

Because the injunction has caused West Virginia to delay enforcement of its law, Alito said the circumstances presented in this case would warrant granting the state’s application. 

“If we put aside the issue of the State’s delay in seeking emergency relief and if the District Court’s analysis of the merits of this case is correct, the generally applicable stay factors plainly justify granting West Virginia’s application,” Alito wrote. 

The student at the heart of the case is 12-year-old Becky Pepper-Jackson, who takes puberty-delaying treatment and estrogen hormone therapy to prevent her from experiencing endogenous puberty.

“We are grateful that the Supreme Court today acknowledged that there was no emergency and that Becky should be allowed to continue to participate with her teammates on her middle school track team, which she has been doing without incident for three going on four seasons, as our challenge to West Virginia’s onerous trans youth sports ban makes its way through the courts," the American Civil Liberties Union, the ACLU of West Virginia and Lambda Legal said in a joint statement Thursday. "This was a baseless and cruel effort to keep Becky from where she belongs–playing alongside her peers as a teammate and as a friend.”

Pepper-Jackson has lived like a girl for as long as she remembers, those groups contend, but West Virginia says she shouldn’t be allowed to play on her school’s girls’ cross-country and track-and-field teams. 

In 2021 the state enacted the Save Women’s Sports Act aimed at protecting female athletes from the harms lawmakers perceived by transgender girls competing against them. Differing from governing bodies that place regulations on transgender athletes, the law is an all-out ban on transgender girls from playing on girl-only athletic teams. 

Pepper-Jackson sued, arguing that the Save Women’s Sports Act violated her equal protection rights under the 14th Amendment and federal laws prohibiting sex discrimination in education. U.S. District Judge Joseph Goodwin ruled against Pepper-Jackson in January, but the Fourth Circuit stayed the ruling in a 2-1 vote last month. West Virginia then filed an emergency application at the high court. 

The state’s application posed a procedural question to the justices: Should the Fourth Circuit have vacated the district judge’s ruling? To push its case for high court intervention, however, however, West Virginia also argued that Pepper-Jackson would likely lose on appeal — a preview of the state's merits arguments. 

Civil rights groups representing Pepper-Jackson called West Virginia’s application unworthy of emergency intervention. The case is a narrow one, advocates say, impacting the ability of just one 12-year-old to play middle school sports. 

Pepper-Jackson claims the state’s ban violates the 14th Amendment’s equal protection clause and Title IX, the federal law prohibiting sex discrimination in education. 

West Virginia says preventing transgender girls from participating in sports serves an important government objective by promoting equal athletic opportunities for the female sex. The state also says it can’t be accused of discriminating based on transgender status because its law distinguishes based on biological sex. 

Follow @KelseyReichmann
Categories / Appeals, Civil Rights, Sports

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