A West Virginia law that prohibits transgender girls from playing on girls sports teams and the equal protection clause of the U.S. Constitution, the U.S. Department of Justice said Thursday.
The Justice Department sided with an 11-year-old girl who has sued over her state鈥檚 new law, one of a wave of at least seven similar measures passed by states around the country this year.
The arguments, outlined in a 鈥渟tatement of interest filing,鈥� are one of the most direct challenges the Biden administration has made to state-level restrictions for transgender students to date.
鈥淭o be sure, there remain significant barriers to providing full equity in athletics for female students,鈥� the Justice Department said in its filing. 鈥淏ut permitting participation by transgender girls, who make up 鈥榓pproximately one half of one percent鈥� of the United States鈥� population, is not one of them.鈥�
The brief, which argues that the West Virginia law is based on 鈥渕isinformation and fear,鈥� is in line with the administration鈥檚 stated position on the issue. It comes a day after the U.S. Department of Education released a memo clarifying its position that the sex-discrimination protections in Title IX prohibit discrimination on the basis of sexual orientation and gender identity.
The plaintiff in the case, Becky Pepper-Jackson, was assigned male at birth but identified as a girl by 3rd grade. Becky, who is 11 and started taking puberty-delaying treatments last year, has been on a school cheerleading team in Harrison County, W. Va., and she hopes to compete on the girl鈥檚 cross-country team in middle school, her suit says.
But she won鈥檛 be allowed to under the state鈥檚 new law, H.B. 3293. Because she can鈥檛 play on a team that aligns with her gender, she will be effectively shut out of participating in team sports throughout her K-12 experience, the Justice Department argued.
鈥淏.P.J. does not seek to join the boys鈥� cross-country and track teams because she is a girl and such participation would 鈥榙evastate鈥� B.P.J., 鈥榗ompletely erase who she is,鈥� and undermine her social transition,鈥� the legal filing argues.
The agency鈥檚 legal arguments rest in part on the U.S. Supreme Court鈥檚 2020 decision in Bostock v. Clayton County, Ga., which held that a prohibition of sex discrimination in Title VII, the federal employment law, prohibits unequal treatment on the basis of sexual orientation or gender identity. The Biden administration, and several preliminary court filings in other cases, have held that that precedent should inform interpretations of Title IX, which prohibits sex discrimination in education.
鈥淭he Supreme Court has recently clarified that discrimination against a person for being transgender is discrimination based on sex,鈥� the filing says, citing Bostock.
In addition, the West Virginia law will affect girls unfairly, because it says 鈥渁thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.鈥� The law defines male sex as 鈥渟ex assigned at birth,鈥� effectively banning transgender girls from girls鈥� sports, but it has no corresponding restrictions for transgender boys.
The law鈥檚 restrictions may also affect cisgender girls, the Justice Department argued, because girls who don鈥檛 present as 鈥渟tereotypically feminine鈥� may be subject to challenges of the eligibility or gender.
The federal brief also questioned the motivations of the West Virginia bill鈥檚 sponsors, flagging instances of 鈥渙utright anti-transgender bias.鈥�
For example, Delegate Margitta Mazzoch, who co-sponsored the measure, said that she did not 鈥渨ant all this mixing and matching鈥� of transgender and cisgender children in 鈥渓ocker rooms,鈥� the filing says.
Supporters of similar state bills around the country have said they are necessary to ensure fairness in girls鈥� sports. And some have questioned the legitimacy of transgender identity.
An attorney Alliance Defending Freedom, a conservative legal group that has argued against transgender-inclusive policies, has slammed the Biden administration鈥檚 position as 鈥渇orcing radical gender identity ideology on everyday Americans by effectively rewriting Title IX.鈥�
The administration has not yet released guidance on how schools should accommodate LGBTQ students or directly challenged one of the new state laws in court.
In addition to the West Virginia filing, the Justice Department also filed a Thursday in a legal challenge over an Arkansas law that prohibits gender-affirming care for transgender youth.
