On Thursday, the United States Supreme Court made a decision to allow a 12-year-old transgender girl in West Virginia to continue competing on the girls’ sports teams at her middle school while a lawsuit over a state ban continues. The girl, Becky Pepper-Jackson, had filed a lawsuit challenging the law, the Save Women’s Sports Act, which West Virginia lawmakers adopted in 2021. A majority of the justices refused to disturb an appeals court order that made it possible for Pepper-Jackson to continue playing on her school’s track and cross-country teams, where she regularly finishes near the back of the pack. However, Justices Samuel Alito and Clarence Thomas issued a dissent, indicating they would have allowed West Virginia to enforce its law against Pepper-Jackson.
West Virginia is among 20 states that ban transgender athletes from participating in sports consistent with their gender identity, according to Movement Advancement Project, a pro-LGBTQ rights think-tank. The state’s law on school sports bars transgender athletes from female teams and defines male and female by looking to the student’s “reproductive biology and genetics at birth”. It applies to middle and high schools, as well as colleges. Under the law, male athletes can play on male or co-ed teams, and female athletes can play on all teams.
Pepper-Jackson is in the middle of the outdoor track season. The federal appeals court had allowed her to compete while she appealed a lower court ruling that upheld the West Virginia law. US District Court Judge Joseph Goodwin initially barred West Virginia from enforcing its law and allowed Pepper-Jackson to compete on the girls’ teams while the case continued. But Goodwin ultimately found that the law does not violate the Constitution or Title IX, the landmark 1972 gender equity legislation. Goodwin ruled the law could remain in place as appeals continued.
Lawyers for the girl, known in the lawsuit by the initials BPJ, appealed. A three-judge panel of the Fourth US Circuit Court of Appeals voted 2-1, without issuing any opinion, to put the law on hold while it considers the case. The two appeals court judges who voted to put the law on hold were Pamela A Harris, an appointee of former President Barack Obama, and Toby J Heytens, an appointee of current President Joe Biden. Judge G Steven Agee, an appointee of former President George W Bush, dissented.
West Virginia Governor Jim Justice, a Republican, recently signed legislation banning gender-affirming care for minors, part of an effort in Republican-led states across the country to curb LGBTQ+ rights this year. Two weeks ago, World Athletics, an international governing body for track and field, also banned transgender athletes from its competitions.
Tennis great Martina Navratilova was among dozens of female athletes backing West Virginia at the Supreme Court, along with Republican attorneys general in 21 states. In asking the high court to allow the law to take effect while the case plays out, West Virginia told the justices that: “This case implicates a question fraught with emotions and differing perspectives. That is all the more reason to defer to state lawmakers pending appeal.”
The Supreme Court provided no justification for its action on Thursday. However, lawyers for the state indicated they expected a positive outcome for their litigation: “The decision was the West Virginia Legislature’s to make. The end of this litigation will confirm that it made a valid one.”
Pepper-Jackson is identified in court documents by her initials because of federal rules that prohibit identifying minors. But Pepper-Jackson and her mother have spoken out repeatedly about the issue.