WASHINGTON – The Supreme Court on Thursday rejected an attempt by West Virginia to bar a transgender student from participating in girls’ sports.
As a result, the 2021 Sports Servants Act cannot be enforced against 12-year-old transgender girl Becky Pepper-Jackson while the lawsuit continues.
The court’s two conservative justices, Samuel Alito and Thomas Clarence, noted that they granted the application. Alito, in a brief opinion, criticized the lower suit for not explaining its reasoning.
“This is a procedural setback, but we are confident that when this case is finally determined on the merits, we will prevail,” West Virginia Attorney General Patrick Morrisey, a Republican, said in a statement.
In preventing transgender girls from participating in sports at middle school, school and college levels, the law says gender is “based solely on the individual’s biological and genetics of reproduction.” As such, a woman is a person “whose biological sex is established as female at birth.”
Law was challenged by Pepper-Jackson, then 11, who wanted to try out for the cross country and cross country teams at a middle school in Harrison County. It is supported by the American Civil Liberties Union and the LGBTQ legal group Lambda.
“We are grateful that today’s Supreme Court recognized that there was no emergency, and that Becky will be allowed to continue to participate in the horse team with her classmates in middle school,” Pepper-Jackson’s lawyers said in a statement. They called the state’s attempt to force a “vain and cruel effort.”
His lawyers said the law violated the 14th Amendment to the Constitution, which requires that the law be applied equally to all, and Title IX of the Education Amendments Act of 1972, which prohibits sex discrimination in education.
In the lawsuit, Pepper-Jackson shared her school’s cross country and track teams, where she was welcomed by teammates and coaches, lawyers said. She undergoes puberty-delaying treatment and hormone therapy.
A federal judge initially ruled in Pepper-Jackson’s favor but in January concluded that the law was too likely to be illegal and allowed it to be enforced against her. Pepper-Jackson appealed, and last month in Richmond, Virginia, the 4th US Circuit of Appeals blocked the state from applying again.
Alabama and 20 other states filed just behind West Virginia, as did a variety of female athletes, including tennis star Martina Navratilova
It is unclear whether the law currently affects some students in the state. West Virginia attorneys said in court papers that if the law doesn’t apply to Pepper-Jackson, “sex-separate sports as traditionally understood will be officially illegal in West Virginia public schools and universities.”
The state of West Virginia, backed by the conservative Legal Alliance Defending Freedom (ADF), has passed just one of a series of measures by Republican states that seek to restrict the participation of transgender athletes in sports.
West Virginia is one of 20 states with similar bans on transgender sports, the largest of which is in effect. It was Kansas this week slow state to enact such a law, as moderate Republicans would prohibit a Democratic president from intervening.
The US Department of Education on Thursday announced its proposal about how Title IX applies to transgender athletes, saying that categories such as West Virginia are likely to be illegal. But, the department said in a statement, it will be legal to limit the participation of transgender athletes in competitive school and college sports in order to “ensure equal athletic opportunity.”
In a related action, Tennessee and other states challenged the Biden administration’s Title IX ruling, which interpreted the law to exclude discrimination in education based on sex and sexual identity.
The Biden administration’s ruling comes after the Supreme Court ruled in 2020 that a federal law that protected sex discrimination in employment against LGBT people, a ruling that angered conservatives. The Supreme Court has not yet ruled on whether the same system applies to Title IX.
In 2021, the court I declined take the case around the question of whether transgender students can use school bathrooms that correspond with their gender identities.