West Virginia law barring transgender athletes from female sports could be taken up by Supreme Court

March 10, 2023
Ben Marquis

Numerous states have enacted legislation to bar biologically male transgender athletes from competing in girls' and women's sports, but such laws have been blocked in some instances by lawsuits filed by activists who support allowing transgender individuals to compete against whichever gender they identify as.

West Virginia is one such state where its Save Women's Sports Act has been blocked by an injunction, though the matter has now been appealed to the U.S. Supreme Court in what could be the first opportunity for the 6-3 conservative-leaning majority to address the issue, the Washington Examiner reported.

The law in question was first passed in 2021 and was then challenged by the American Civil Liberties Union. A district court ultimately upheld the law as constitutional, but the ACLU appealed the matter to the 4th Circuit Court of Appeals and received a requested injunction to block the law while the case proceeds to a final conclusion.

Law firm says no "factual or legal basis" for injunction

Fox News reported that the ACLU is representing a biologically male transgender middle school student named Becky Pepper-Jackson who was denied a chance to join the girls' cross-country team. The organization has argued that the state law violates Pepper-Jackson's 14th Amendment Equal Protection Clause rights as well as the federal Title IX law, which prohibits sex-based discrimination in schools.

On the other side is West Virginia Attorney General Patrick Morrisey (R) along with the Alliance Defending Freedom legal group, which is representing a biologically female soccer player named Lainey Armistead.

The ADF is involved in other similar lawsuits, such as one in Connecticut where three female athletes are suing the state for forcing them to compete against -- and be defeated and displaced by -- biologically male athletes who present themselves as female.

Senior ADF attorney Christiana Keifer denounced the 4th Circuit's "four-page order that has no factual basis and no legal analysis" that blocked the West Virginia law, and told Fox News, "What the Fourth Circuit did was not only wrong, as it relates to protecting fairness and equal opportunities for female athletes, but it's also wrong as a matter of law and how they went about it. And stopping the valid law without any factual or legal basis."

Defending the rights and opportunities for female athletes

In an interview with Fox News, Armistead said she "never dreamed this would be an issue in West Virginia" but decided to get involved when she realized the full ramifications of the ACLU's lawsuit in her state.

"I love soccer. I played it my entire life. I grew up playing under my dad's teams and then playing against my brothers," she said. "And I noticed from a really young age that there was a big biological difference even between my younger brother. Even though I was two years older, he was still stronger, fitter, and faster than me."

"And whenever I heard about the Connecticut lawsuit or just the girls losing out, I was really devastated for them because I know how much work all these athletes have put into their individual sports," Armistead continued.

"And then I heard about the West Virginia Save Women’s Sports law," she added. "And whenever I had the privilege to defend it, and defend all the girls and women in West Virginia from not having to play against biological males, I was excited."

"We will vigorously defend the Act," AG says

In a statement released Thursday, West Virginia AG 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."

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

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