Judge halts West Virginia law targeting transgender athletes

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A federal judge decided Wednesday to temporarily block a West Virginia law that bars transgender women and girls from participating on school sports teams that match their gender identity.

The lawsuit was filed on behalf of 11-year-old Becky Pepper-Jackson, a soon-to-be middle schooler looking to try out for her school's girls cross-country team. Lawyers on behalf of Pepper-Jackson argued the West Virginia law discriminates on the “basis of sex” and “transgender status,” violating both the Fourteenth Amendment's Equal Protection Clause and Title IX, a federal education law that prevents sex-based discrimination.

“While this case is pending, Defendants are enjoined from enforcing Section 18-2-25d against B.P.J.” Southern District of West Virginia Judge Joseph R. Goodwin wrote. “She will be permitted to sign up for and participate in school athletics in the same way as her girl classmates.”

They asked the judge for a preliminary injunction because cross-country team practices start this month. The law took effect on July 1, and the principal of Bridgeport Middle School, where Pepper-Jackson will be attending, told the girl's mother in May that the law would bar her from participating on the girls team in the fall.

“I am excited to know that I will be able to try out for the girls cross-country team and follow in the running shoes of my family,” Pepper-Jackson said in a statement. “It hurt that the State of West Virginia would try to block me from pursuing my dreams. I just want to play.”

Key context: West Virginia’s law is the first such set of restrictions on trangender athletes to be paused this year while legal challenges are ongoing. Idaho, the first state in the nation to have such a law, has also had its statute tied up in court over the past year.

New laws barring transgender girls and women from playing on teams that match their gender identity took effect this month in several states. Mississippi, Montana, Florida, West Virginia, Tennessee, Arkansas and Alabama all signed transgender athlete restrictions this year.

Backers of these laws have pointed to a January executive order from President Joe Biden that aimed to promote inclusion for transgender people, saying this order made new restrictions necessary. The White House has argued a Supreme Court ruling on LGBTQ rights in the workplace also extends to Title IX. The Education Department has since issued a new interpretation of the law that includes prohibiting discrimination based on sexual orientation and gender identity.

More details: Goodwin said he had “been provided with scant evidence that this law addresses any problem at all, let alone an important problem.” The judge said he determined Pepper-Jackson “has a likelihood of success in demonstrating that this statute is unconstitutional as it applies to her and that it violates Title IX.”

Goodwin, in his order, cited excerpts from Hecox v. Little — the case challenging the Idaho law — and a related landmark case, Grimm v. Gloucester County School Board, which codified transgender students’ right to use bathrooms that match their gender identity.

“This statute as applied to B.P.J. is not substantially related to providing equal athletic opportunities for girls,” he said, though adding he will proceed with the case “as if the State’s offered objective is genuine.”

He also mentioned that Pepper-Jackson, who has been prescribed puberty-blocking drugs, has shown that she won't have an “inherent physical advantage over the girls she would compete against.” And he added that she won't be taking away athletic opportunities from other girls because “transgender people make up a small percentage of the population.”

“We’ve said all along this cruel legislation would not survive a legal challenge, and we’re encouraged by the court’s decision today,” said ACLU West Virginia Legal Director Loree Stark in a statement. “We hope trans kids throughout West Virginia who felt attacked and wronged by the passage of this legislation are feeling empowered by today’s news.”

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