Federal judge upholds West Virginia’s law that limits participation of transgender athletes

A federal judge upheld West Virginia’s law affecting the participation of transgender athletes on school sports teams.

Joseph Goodwin

“The question before the court is whether the legislature’s chosen definition of ‘girl’ and ‘woman’ in this context is constitutionally permissible. I find that it is,” wrote U.S. District Judge Joseph Goodwin of the Southern District of West Virginia in a 23-page ruling that also found the state’s law complies with federal Title IX.

The West Virginia Attorney General’s Office had defended the law in federal court. Attorney General Patrick Morrisey praised the judge’s order in a written statement.

Patrick Morrisey

“This is not only about simple biology, but fairness for women’s sports, plain and simple,” Morrisey stated. “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’s event women and girls lose their opportunity to shine.”

ACLU West Virginia said it is reviewing the ruling to determine next steps.

Mike Pushkin

West Virginia Democratic Party Chairman Mike Pushkin, who also serves in the House of Delegates, today characterized the law as a misplaced priority.

“I hope we get our priorities straight and actually focus on the most pressing issues in West Virginia,” Pushkin said on “580 Live” on WCHS Radio, describing concerns with the state’s health and social services agency and overcrowded jails.

“There are so many other issues we need to focus on, and I hope we can move on from this and the Legislature can focus on real problems at hand instead of running more bills like that just meant to gin up fear and hatred and divide people.”

In 2021, West Virginia joined dozens of states placing restrictions on transgender athletes’ participation on sports teams.

House Bill 3293 defines male and female “based solely on the individual’s reproductive biology and genetics at birth.” It says “any student aggrieved by a violation of this section may bring an action” against a county board of education or college “alleged to be responsible for the alleged violation” — intended to allow lawsuits over anyone contending a transgender athlete was gaining advantage in sports.

Lawyers for middle schooler Becky Pepper-Jackson — or B.P.J., as she is identified in court filings — challenged the law under Title IX policy and the Constitution’s Equal Protection Clause.

The lawsuit was meant to assure she could go through with her hope of trying out for the cross-country and track teams at Bridgeport Middle School.

Becky Pepper-Jackson

Becky Pepper-Jackson, the lawsuit states, was born male but identified as a girl from a very young age. By third grade, she was living as a girl at home and told her mother and father she did not want to keep going to school dressed as a boy.

Within the past few years, she was diagnosed with gender dysphoria and had been receiving puberty-delaying treatment for almost a year when West Virginia passed the bill affecting transgender athletes.

Judge Goodwin granted a preliminary injunction early in the case, allowing the athlete to run on the cross country team while the case was explored further. As the case moved ahead, the parties moved for summary judgment.

In his ruling this week, Goodwin noted that at the time the law was passed West Virginia did not have documented cases of transgender athletes attempting to compete on sports teams.

“While the legislature did take note of transgender students playing sports in other states, it is obvious to me that the statute is at best a solution to a potential, but not yet realized, ‘problem,’” he wrote.

But in the end, the judge concluded that the state’s biological sex definitions relate appropriately to sports teams and do not violate the constitution.

“While sex and gender are related, they are not the same,” Goodwin wrote.

For most people, the judge wrote, the two align. But gender is fluid, Goodwin wrote, with transgender people having deeply held, consistent conviction that their gender is different than their biological sex.

Even so, the judge wrote, biological sex dictates physical characteristics that are relevant to competing in sports.

“Given B.P.J.’s concession that circulating testosterone in males creates a biological difference in athletic performance, I do not see how I could find that the state’s classification based on biological sex is not substantially related to its interest in providing equal athletic opportunities for females,” Goodwin wrote.

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