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Federal Court Strikes Down West Virginia Transgender Student Athlete Ban

State AG Patrick Morrisey says he is ‘deeply disappointed’ in the decision

Federal Court Strikes Down West Virginia Transgender Student Athlete Ban

A federal appeals court has struck down a West Virginia law prohibiting biological males from participating on female athletic teams.

The Fourth U.S. Circuit Court of Appeals ruled in a 2-1 decision that House Bill 3293, which was passed in 2021, violates the U.S. Constitution’s Equal Protection Clause and Title IX, the 70s-era civil rights law prohibiting sex-based discrimination in schools.

The case centers around a biological male named Becky Pepper Jackson, who is currently in the eighth grade, but has identified as a girl since third grade.

A month after HB 3293 went into effect, the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of Jackson, who hoped to compete in cross country. “H.B. 3293 was prompted by unfounded stereotypes, false scientific claims, and baseless fear and misunderstanding of girls who are transgender,” the suit stated.

In February, the appeals court blocked the state from kicking Jackson off the school’s track and field team as legal challenges to a lower court ruling progressed.

The appeals court said in its April 16 ruling that the law cannot lawfully be applied to Jackson, given that he has been living as a female for five years; his elementary and middle schools provided support to affirm his female gender identity; he had been taking puberty blockers; and his family had the state change the official birth certificate to reflect a female name and list sex as female.

Judge Toby Heytens wrote, “Offering [Jackson] a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all. The defendants cannot expect that [Jackson] will countermand her social transition, her medical treatment, and all the work she has done with her schools, teachers, and coaches for nearly half her life by introducing herself to teammates, coaches, and even opponents as a boy.”

The ACLU celebrated the court decision as a win.

“This is a tremendous victory for our client, transgender West Virginians, and the freedom of all youth to play as who they are,” said Joshua Block, Senior Staff Attorney for the ACLU’s LGBTQ & HIV Project. “It also continues a string of federal courts ruling against bans on the participation of transgender athletes and in favor of their equal participation as the gender they know themselves to be. This case is fundamentally about the equality of transgender youth in our schools and our communities and we’re thankful the Fourth Circuit agreed.”

West Virginia Attorney General Patrick Morrisey said he is “deeply disappointed” in the decision.

“I will keep fighting to safeguard Title IX. We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field,” he added. “We know the law is correct and will use every available tool to defend it.”

At least 24 states have laws on the books barring biological men from competing against biological women in sports.

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