West Virginia ban on transgender athletes in girls' school sports can proceed: Judge

West Virginia
‘s law preventing transgender athletes from competing in girls’ school sports is “not unconstitutional” and may remain in place, a federal judge ruled Thursday.

American Civil Liberties Union
and its state chapter sued in 2021 on behalf of an 11-year-old transgender girl, Becky Pepper-Jackson, who wanted to compete in middle school cross-country in Harrison County. The lawsuit named West Virginia and the county’s board of education and their superintendents as defendants.

Southern District of West Virginia Judge Joseph Goodwin, an appointee of former President
Bill Clinton
who initially
the law in July 2021, wrote in his
that “being transgender is natural and is not a choice” but ultimately affirmed that “sex is also natural, and it dictates physical characteristics that are relevant to athletics.”

“The record does make clear that, in passing this law, the legislature intended to prevent transgender girls from playing on girls’ sports teams,” Goodwin wrote. “But acting to prevent transgender girls, along with all other biological males, from playing on girls’ teams is not unconstitutional if the classification is substantially related to an important government interest.”


The judge furthered in his opinion that he has little “doubt that H.B. 3293 aimed to politicize participation in school athletics for transgender students,” though he conceded that “there is not a sufficient record of legislative animus.”

Goodwin said at the time of the law’s passage there were not widespread reports of transgender girls in sports, and therefore, there was not yet a realized “problem.”

“But for the state legislature, creating a ‘solution’ in search of a problem, the courts would have no reason to consider eligibility rules for youth athletics. Nevertheless, I must do so now,” Goodwin added.

Notably, Goodwin declined to “get into the business” of defining the meaning of a “girl” or “woman.”

“The courts have no business creating such definitions, and I would be hard-pressed to find many other contexts where one’s sex and gender are relevant legislative considerations,” Goodwin wrote.

Pepper-Jackson’s lawyers claimed that the law “targeted at, and intended only to affect, girls who are transgender.” The plaintiff also got a major support boost from President Joe Biden’s administration, which submitted a
statement of interest
in support of her lawsuit.

“A state law that limits or denies a particular class of people’s ability to participate in public, federally funded educational programs and activities solely because their gender identity does not match their sex assigned at birth violates both Title IX and the Equal Protection Clause,” the Justice Department wrote in the filing.

West Virginia Attorney General Patrick Morrisey (R) applauded the decision in a statement.

“This short and simple law demands that girls and women get their fair share of opportunities in education, and Title IX’s regulations make it clear that this could be accomplished in school athletic programs by having ‘separate teams for members of each sex’ where the teams are based on competitive skill,” Morrisey wrote.

The ACLU of West Virginia said it was reviewing the decision with its co-counsel to determine its next steps in the case. The law applies to middle and high schools, along with colleges.


Upholding the West Virginia law comes as
more than a dozen other states
have passed laws banning or restricting transgender participation based on the notion that they have an unfair competitive advantage. The ruling comes as South Carolina legislators also could soon
attempt to define
what it means to be a woman in its constitution.

In December 2021, Idaho State University athlete Madison Kenyon began
keeping transgender athletes out of female sports after she lost a competition to a biological male competing with other biological females. Other protests and
came out of the University of Pennsylvania’s swim team after transgender swimmer
Lia Thomas
dominated NCAA swimming competitions.

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