WASHINGTON (CN) — West Virginia said Thursday it would bring a brewing battle over transgender athletes to the Supreme Court steps.
State Attorney General Patrick Morrisey, a Republican, announced his office would file an emergency application at the high court asking the justices to throw out a lower court pause on the Save Women’s Sports Act, a law banning transgender girls from participating in girls’ school sports teams.
“We are resolute in protecting opportunities for women and girls in sports because when biological males win in a women’s event — as has happened time and again — female athletes lose their opportunity to shine,” Morrisey said in a statement.
The law is being challenged by a teenage transgender athlete, Becky Pepper-Jackson, who aspires to join the girls' cross-country and track teams at her middle school. West Virginia’s law would ban Pepper-Jackson’s participation, however, as it mandates that school athletic teams must be designated based on biological sex. Citing the Supreme Court’s 1996 ruling in United States v. Virginia, the law claims to celebrate the inherent differences between biological males and females.
Pepper-Jackson’s mother was told her daughter’s participation in school sports would be dependent on the outcome of the Save Women’s Sports Act. which was pending in the West Virginia Legislature. After Republican Governor Jim Justice signed the bill into law in 2021, Pepper-Jackson was told she could not participate in girls’ teams at the school.
Pepper-Jackson filed a suit against the school board in 2021, claiming she was deprived of equal protection guarantees in the 14th Amendment. A federal judge initially blocked the law. U.S. District Judge Joseph Goodwin said West Virginia provided “scant evidence” that the law addressed a problem and said Pepper-Jackson was likely to succeed in demonstrating the law was unconstitutional.
However, in January, Goodwin issued an opinion upholding the law.
“The fact is, however, that a transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males generally outperform females athletically,” Goodwin wrote. “The state is permitted to legislate sports rules on this basis because sex, and the physical characteristics that flow from it, are substantially related to athletic performance and fairness in sports.”
The Fourth Circuit then blocked the ruling in a 2-1 vote in February. Now West Virginia will ask the justices to bar the Fourth Circuit’s stay.
According to Morrisey, female athletes would be harmed if transgender girls were allowed to join their teams. He claims the injunction, “harms biologically female athletes, too, who will continue to be displaced as long as biological males join women’s sports teams. In that way, the majority’s cursory decision undermines equal protection — it doesn’t advance it.”
The American Civil Liberties Union — which filed the underlying lawsuit on Pepper-Jackson’s behalf — did not respond to a request for comment on the imminent filing.
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High court invited to tackle fairness for trans athletes March 15, 2023