U.S.A.: West Virginia trans sports ban discriminates against teen athlete, appeals court says

The 4th U.S.A. Circuit Court of Appeals determined that West Virginia’s trans sports ban goes against Title IX, violating the rights of a young athlete. The law was found unjustly discriminatory toward a 13-year-old who has been on puberty blockers and identified publicly as female since third grade.

In February 2023, the court had intervened to prevent the removal of Becky Pepper Jackson from her middle school's track and cross-country teams under the enforced law.

According to ‘Associated Press’, Judge Toby Heytens pointed out that forcing her to choose between not competing or only competing in boys’ teams “is no real choice at all.”

“The defendants cannot expect B.P.J. to negate her social transition, medical treatment, and the extensive support she's received from her school, teachers, and coaches by having her misrepresent herself to teammates and opponents as a boy,” articulated Heytens.

The ruling sides with the American Civil Liberties Union, its West Virginia division, and the LGBTQ+ organisation Lambda Legal, who brought the lawsuit against state and education officials after Governor Jim Justice enacted the bill in 2021.

“This represents a monumental win for our client, transgender individuals in West Virginia, and the right of all young people to participate in sports as their true selves,” stated Joshua Block, an ACLU West Virginia lawyer.

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The court acknowledged Jackson's over five-year gender identity living as a girl, documented with a new birth certificate. She has been involved in girls’ sports since elementary school, with treatments including puberty blockers and oestrogen.

“B.P.J. has demonstrated that applying this act against her is more severe than the treatment of similarly situated peers, restricting her from meaningful sports participation on the basis of sex, which is all that Title IX necessitates,” Heytens concluded.

While the decision explicitly labels the law as discriminatory, ACLU-West Virginia spokesperson Billy Wolfe noted, "as far as we're aware, our client is currently the sole affected individual by this law. We urge others in similar situations to reach out to the ACLU-WV legal team.”

West Virginia’s Attorney General Patrick Morrisey expressed “deep disappointment” with the ruling, stressing his intentions to “continue defending Title IX to ensure the protection and fairness in women's sports.”

In January 2023, a prior preliminary injunction from July 2021 was overturned by a federal judge, who ruled that the state’s trans sports law did not breach Title IX.

The appellate court clarified that it does not restrict states from creating sex-separated sports teams nor question their authority in drawing such lines. “We only clarify that it was incorrect to dismiss the claims of B.P.J. under Title IX in this particular case,” the court noted.

Dissenting, Judge G. Steven Agee argued that teams can be organised based on gender at birth without contradicting the Equal Protection Clause or Title IX.

Recent years have seen pronounced legal and legislative battles across various U.S. states involving transgender individuals’ public life roles, particularly in sports, health care, and access to facilities matching gender identity.

West Virginia joins at least 23 other states with active bans against transgender women and girls in certain sports categories.

Temporary holds on these bans have been placed in states like Arizona, Idaho, and Utah. Meanwhile, the 2nd Circuit has revived a challenge in Connecticut to allow trans girls to compete in girls’ sports.

On a related note, an Ohio law banning gender-affirming care for minors and excluding trans girls from girls’ sports was temporarily halted by Judge Michael Holbrook, citing probable legislative overreach.

Divisions within the Biden administration led to the separation of Title IX rule-making concerning campus sexual assault and trans athletes, with the latter's regulations still undecided.

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