In the second defeat for transgender rights in schools in a week, a federal district judge upheld a West Virginia law that bars transgender athletes from competing in girls鈥� school sports in the state.
The by Judge Joseph R. Goodwin of Charleston, W. Va., is an about-face from the his blocking the law at a preliminary stage, permitting a then-11-year-old transgender girl to compete in girls鈥� cross country and track.
The girl, Becky Pepper-Jackson, has said: 鈥淚 just want to play.鈥� challenges the statute as a violation of her 14th Amendment right to equal protection of the law and of Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded educational programs.
In his 2021 decision, Goodwin said Pepper-Jackson was being excluded from school athletics 鈥渙n the basis of sex鈥� in likely violation of the equal-protection clause and Title IX.
But his new decision this week in B.P.J. v. West Virginia State Board of Education, on motions for summary judgment by various parties in the case, held 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�
The 2021 Save Women鈥檚 Sports act defines 鈥渇emale鈥� as 鈥渁n individual whose biological sex determined at birth is female.鈥�
Goodwin said the legislature was motivated by the widely discussed situation in Connecticut where two transgender girls had defeated cisgender female athletes in some track competitions. (That led to a lawsuit by the cisgender girls that was recently rejected by a federal appeals court, which upheld the transgender-inclusive rules of Connecticut鈥檚 school sports governing body.)
鈥淎cting to prevent transgender girls, along with all other biological males, from playing on girls鈥� teams is not unconstitutional if the classification is substantially related to an important government interest,鈥� Goodwin said. 鈥淭he fact is 鈥� that a transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males. And biological males generally outperform females athletically.鈥�
West Virginia 鈥渋s permitted to legislate sports rules on this basis because sex, and the physical characteristics that flow from it, are substantially related to athletic performance and fairness in sports,鈥� the judge said.
State may have adopted a 鈥榮olution in search of a problem,鈥� judge says
Goodwin rejected Pepper-Jackson鈥檚 arguments that the availability of puberty blockers used in the gender transition process put transgender girls in the same legal definition as cisgender girls.
The judge, as he had earlier, said Pepper-Jackson was deserving of respect and he suggested the West Virginia legislature had provided a 鈥渟olution in search of a problem鈥� since no transgender girl had sought to participate in female sports in the state before it passed the law. But there was insufficient evidence that the state legislature had acted with animus towards transgender people in passing the law, he said.
鈥淲hile the record before me does reveal that at least one legislator held or implicitly supported private bias against, or moral disapproval of, transgender individuals, it does not contain evidence of that type of animus more broadly throughout the state legislature,鈥� Goodwin said.
West Virginia Attorney General Patrick Morrissey, a Republican, whose office defended the state law, said in a statement, 鈥淭his is not only about simple biology, but fairness for women鈥檚 sports, plain and simple. Opportunities for girls and women on the field are precious and we must safeguard that future. Protecting these opportunities is important, because when biological males compete in a women鈥檚 event, women and girls lose their opportunity to shine.鈥�
Pepper-Jackson, who is now 12, is being represented by the gay-rights organization Lambda Legal, the American Civil Liberties Union of West Virginia, and the law firm Cooley LLP.
鈥淭he District Court鈥檚 ruling is disappointing both for its harmful conclusion and its spurious argument,鈥� the groups said in a joint statement.鈥� The fact is the equal and fair participation of transgender youth takes nothing away from cisgender youth and helps to maintain a level playing field for all youth.鈥�
The legal groups were considering their next steps, the statement said. Pepper-Jackson has also been supported by President Joe Biden鈥檚 administration, which filed a in the case.
The West Virginia decision comes barely a week after a federal appeals court upheld a Florida school district鈥檚 policy of separating restrooms by 鈥渂iological sex鈥� and barring transgender students from using facilities consistent with their gender identity.
That on Dec. 30, by the full U.S. Court of Appeals for the 11th Circuit, in Atlanta, went counter to three other federal appeals courts that have read either the equal-protection clause or Title IX (or both) to support transgender-inclusive school policies.
