The United States Supreme Court could review its first case over a prohibition on transgender-identifying people competing on teams that do not match their sex at birth.
West Virginia Attorney General Patrick Morrisey announced on March 9 that he has asked the Supreme Court to permit his state to enforce a policy that would ban biological males who identify as female from competing in girls’ sports.
“This simple law (Save Women’s Sports Act) demands that girls and women get their fair share of opportunities in sports,” Attorney General Morrisey said, per WTRF. “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.”
Morrissey said biological female athletes “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 attorney general said.
In April of 2021, Governor Jim Justice of West Virginia signed into law HB 3293, known as the Save Women's Sports Act. Similar laws were enacted in Florida, South Carolina, Alabama, Arkansas, Idaho, Mississippi, Montana, Tennessee and Oklahoma.
The American Civil Liberties Union sued West Virginia over the law in May on behalf of an 11-year-old who identifies as a transgender girl. The organization and its co-plaintiffs – Lambda Legal, ACLU West Virginia, and Cooley LLP – argued the law kept the 11-year-old from joining the girls’ cross-country team. The ACLU argued the law violated the Equal Protection Clause of the 14th Amendment rights.
“We told lawmakers around the country that we would see them in court if they passed legislation attacking trans youth, and today we are making good on that promise,” said Joshua Block, senior staff attorney with the ACLU, per WTRF. “Transgender youth in West Virginia who want to be on a team and challenge themselves should have the opportunity to do so, just like any other student.”
A judge temporarily blocked the law from being enforced in July of 2021.
On behalf of a female collegiate soccer player named Lainey Armistead, the Alliance Defending Freedom filed a motion to intervene.
“This commonsense law ensures equal opportunities for women and girls in sports and protects their safety by making sure they are not forced to compete against males,” the ADF states.
In January, Judge Joseph R. Goodwin of the Southern District of West Virginia ruled HR3293 was “constitutionally permissible” and struck down the injunction.
"I have no doubt that H.B. 3293 aimed to politicize participation in school athletics for transgender students," he wrote, per Fox News. "Nevertheless, there is not a sufficient record of legislative animus. Considering the law under the intermediate scrutiny standard, I find that it is substantially related to an important government interest."
Goodwin did not define the terms “girl” or “woman” in his ruling, stating the “courts have no business creating such definitions.” The judge did acknowledge that biology has an undeniable impact on athletic competition.
"While some females may be able to outperform some males, it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes,” Goodwin wrote. “This is not an overbroad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes.”
The sports regulation was then once again blocked in late February. The Fourth U.S. Court of Appeals reinstated the temporary injunction and prohibits schools from preventing students who identify as transgender from competing on teams that do not correspond with their biological gender.
Transgenderism-related legal questions have only made it to the Supreme Court on a few occasions. The Supreme Court declined to take up a case on the question of transgender students and bathroom access in schools in 2021. The court ruled in 2020 that federal law prohibiting sex discrimination in employment extended to gay and transgender people.
