West Virginia asks Supreme Court to vacate injunction blocking law that protects female athletes from biologically male competitors

March 11, 2023
Ben Marquis

West Virginia, like several other states, passed a law in recent years that bars biological males who identify as female from competing athletically against biological females, but that law was challenged by the American Civil Liberties Union and blocked with an injunction from a federal appeals court.

Now, however, the state plus a law firm representing a former female collegiate athlete have asked the U.S. Supreme Court to vacate that injunction and allow the 2021 Save Women’s Sports Act to go back into effect, the Epoch Times reported.

Appeals court blocks state law

When West Virginia first enacted the Save Women's Sports Act, the ACLU filed suit on behalf of a biologically male middle school student who identifies as female and wanted to compete on the girls' track team, and alleged that the law violated the student's rights under the 14th Amendment's Equal Protection Clause as well as the Title IX law that prohibits sex-based discrimination in education.

A district court initially issued a preliminary injunction to block the law, but upon further briefing and consideration of the facts, dissolved that injunction and issued a summary judgment in favor of the law being constitutional and in alignment with the Title IX law.

The ACLU appealed that ruling to the 4th Circuit Court of appeals and, without any explanation or legal reasoning, was granted its request to have the preliminary injunction pending appeal reinstated, effectively blocking the law and allowing the transgender student to compete on the girls' track team.

Injunction "undermines equal protection" for women and girls

On Thursday, West Virginia Attorney General Patrick Morrisey (R) announced his plan to file a request for the Supreme Court to intervene and vacate the injunction.

"This simple law (Save Women’s Sports Act) demands that girls and women get their fair share of opportunities in sports," Morrisey said. "The recent injunction decision from the United States Court of Appeals for the Fourth Circuit is a minor setback, but we remain confident in the merits of our defense."

"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," he continued. "That’s why we’re taking this case to the Supreme Court."

The AG noted that the 4th Circuit's 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."

"We will keep on fighting so female athletes can compete on a level playing field. The Act protects fairness and safety for female athletes across West Virginia. We will vigorously defend the Act because we think we are clearly correct on the law," Morrisey added. "Some will claim this is simply discrimination, but nothing could be further from the truth."

"Biological differences" matter in sports

AG Morrisey was joined in filing the motion to vacate with the Supreme Court by the Alliance Defending Freedom, a legal group that represents a former female college soccer player named Lainey Armistead who joined West Virginia in the lawsuit, as well as other female athletes in other cases in other states.

Christiana Keifer, a senior counselor for the ADF, said in a statement, "Female athletes have fought long and hard for equal opportunities, and they deserve to compete on a fair and level playing field."

"Biological differences between males and females matter in sports. West Virginia and 17 other states have enacted laws that protect women and girls from having to compete against males," she added. "Every woman deserves the respect and dignity that comes with having an equal opportunity to excel and win in athletics."

It remains unknown at this time if the Supreme Court will actually take up this case, but if so, it will be the first time that the issue of transgender athletes and women's sports is considered at the highest level of the nation's judicial system.

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