The U.S. Supreme Court on Thursday declined to reinstate鈥攆or now鈥攁 West Virginia law that bars transgender female athletes from competing in girls鈥� school sports, over the dissent of two of its most conservative members.
The case 鈥渃oncerns an important issue that this court is likely to be required to address in the near future,鈥� Justice Samuel A. Alito Jr. wrote in a dissent joined by Justice Clarence Thomas. The issue, Alito said, is whether Title IX of the Education Amendments of 1972 or the 14th Amendment鈥檚 equal-protection clause prohibits a state 鈥渇rom restricting participation in women鈥檚 or girls鈥� sports based on genes or physiological or anatomical characteristics.鈥�
Alito did not reveal his stance with regard to this case, But he warned in that allowing transgender students to participate in sports 鈥減reviously reserved for one sex鈥� threatens to 鈥渦ndermine one of [Title IX鈥檚] major achievements, giving young women an equal opportunity to participate in sports.鈥� (Thomas joined that Alito dissent in Bostock v. Clayton County, Ga., in which the court held that federal employment-discrimination law covered sexual orientation and gender identity.)
The high court鈥檚 rejection of the emergency request from West Virginia allows a lower court injunction in favor of a 12-year-old transgender student, Becky Pepper-Jackson, to participate in girls鈥� track this spring.
鈥淲e are grateful that the Supreme Court today acknowledged that there was no emergency and that Becky should be allowed to continue to participate with her teammates on her middle school track team,鈥� said a joint statement from Lambda Legal and the American Civil Liberties Union of West Virginia.
New proposed rules for transgender sports eligibility under Title IX
The court鈥檚 action comes as transgender female participation in girls鈥� and women鈥檚 sports remains a major flashpoint. Some states have enacted bans, other legislatures are debating prohibitions, and other courts are considering pending cases.
On Thursday, President Joe Biden鈥檚 administration also announced that it is developing rules under Title IX to prohibit schools from categorically barring transgender students from joining teams that align with their gender identity, though it would allow them to be excluded from some competitive levels of sports.
In the West Virginia case, Pepper-Jackson challenged the 2021 Save Women鈥檚 Sports Act, which defines 鈥渇emale鈥� as 鈥渁n individual whose biological sex determined at birth is female.鈥� A federal district judge had initially blocked the law but in January 2023 upheld it, if somewhat reluctantly. The that it was 鈥渃onstitutionally permissible鈥� for the West Virginia legislature to limit participation in school and college sports to classifications based on 鈥渂iological sex.鈥� Biological males generally outperform females athletically, the judge said, and thus the legislature was acting in a manner related to athletic performance and fairness in sports.
In February, a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., voted 2-1 to issue an injunction allowing Pepper-Jackson to compete while the merits of her appeal proceeded. The panel offered no reasoning for the decision.
That prompted West Virginia, joined by some intervening cisgender female athletes represented by , a conservative Scottsdale, Ariz.-based legal organization, .
鈥淐omplete lack of analysis [by the 4th Circuit] is the first tell that something is amiss, as federal courts should not enjoin democratically passed legislation without at least providing a rationale,鈥� the joint emergency application to throw out the injunction said.
Lambda Legal and the ACLU that the law鈥檚 defenders had not appealed the 2021 injunction that briefly blocked it, and so it could hardly be an emergency to allow one transgender student to continue to participate in girls鈥� sports.
Alito, in his dissent to the court鈥檚 action denying the emergency application, focused on procedural considerations.
鈥淎mong other things, enforcement of the law at issue should not be forbidden by the federal courts without any explanation,鈥� said Alito. He acknowledged that the state had not challenged the earlier injunction, but said that under the normal factors, the court would consider in deciding whether to block a lower-court injunction, 鈥渢he state is entitled to relief.鈥�
West Virginia Attorney General Patrick Morrissey, a Republican, said in a statement that the Supreme Court鈥檚 action 鈥渋s a procedural setback, but we remain confident that when this case is ultimately determined on the merits, we will prevail.鈥�
鈥淲e maintain our stance that this is a common sense law鈥攚e have a very strong case,鈥� Morrissey added.
