By: Carlton Fearon

The Fourth Circuit has stayed a ruling in Southern West Virginia U.S. District Court that upheld West Virginia’s Transgender Sports Law.[1] In July 2021, GOP Governor Jim Justice signed the law, making West Virginia one of the latest states to pass a law that limits transgender athletes’ participation in sports.[2] The new law requires athletes to compete in sports “based solely on the individual’s reproductive biology and genetics at birth.”[3] This means that transgender girls and women must compete on boys’ or men’s teams, while transgender boys and men must compete on girls’ or women’s teams.[4] To advance their position, conservatives leaders claim that transgender women and girls have physical advantages ​over cisgender women and girls in sports, yet a 2017 report found “no direct or consistent research” on any such advantage.[5]

The law has faced significant backlash from LGBTQ+ advocates who argue that it discriminates against transgender athletes and could harm their mental health and well-being.[6] Additionally, critics of the law argue that it is based on flawed assumptions about gender and biology, and that it ignores the experiences of transgender people.[7]

The American Civil Liberties and its West Virginia chapter filed a lawsuit on behalf of a  student-athlete named Becky Pepper-Jackson.[8] Pepper-Jackson, a middle schooler, sued the West Virginia school district over the law, arguing that it violates her rights under the U.S. Constitution’s equal protection clause and Title IX, which prohibits sex discrimination in education.[9]  The district court agreed, granting Pepper-Jackson’s injunction temporarily blocking the law three months after it was passed.[10] However, earlier this year the district court reneged, ruling in favor of the state.[11] Pepper-Jackson then appealed to the 4th US Circuit Court of Appeals, which put the law on hold again.[12] Now, the state is asking the conservatively led Supreme Court to step in.[13]

It is important to note that the Supreme Court has a mixed record on LGBTQ+ rights. In 2021, the Court denied a petition for certiorari in a case ruling a trans student could use the bathroom that corresponded to his gender identity, but the Court has also suggested it will allow religious objections to be raised against anti-discrimination laws.[14]

Given the complexity of the legal and factual issues involved, it is difficult to predict how the Supreme Court will rule in this case. The court may uphold the West Virginia law, finding that it does not violate Title IX or the Constitution. Alternatively, the court may strike down the law as discriminatory and harmful to transgender athletes. Regardless of the outcome, this case underscores the ongoing struggle for LGBTQ+ rights in the United States and highlights the importance of the courts in protecting those rights.

[1] Divided Fourth Circuit Issues Order That Puts West Virginia’s Transgender Sports Law on Hold, WV News (Feb. 22, 2023, https://www.wvnews.com/news/wvnews/divided-fourth-circuit-issues-order-that-puts-west-virginias-transgender-sports-law-on-hold/article_247d4580-b2ec-11ed-b527-83720493bcbc.html [hereinafter Divided Fourth Circuit].

[2] Devan Cole, West Virginia Asks Supreme Court To Let It Enforce State’s Anti-Trans Sports Ban, CNN.com (Mar. 13, 2023), https://www.cnn.com/2023/03/10/politics/transgender-sports-ban-west-virginia-supreme-court/index.html.

[3] Andrew Chung, West Virginia to ask US Supreme Court to allow transgender athlete ban, REUTERS (Mar. 9, 2023, 1:57 PM), https://www.reuters.com/legal/west-virginia-ask-us-supreme-court-allow-transgender-athlete-ban-2023-03-09/.

[4] Id.

[5] Bethany Alice Jones et. al., Sport and Transgender People: A Systematic Review of the Literature Relating to Sport Participation and Competitive Sport Policies, 47 Sports Med. 701, 701 (2017).

[6] See Paul LeBlanc, West Virginia Governor Signs Anti-Trans Sports Bill Into Law, CNN.com (Apr. 28, 2021, 9:57 PM), https://www.cnn.com/2021/04/28/politics/west-virginia-anti-trans-sports-bill/index.html.

[7] See id.

[8] Divided Fourth Circuit, supra note 1.

[9] Chung, supra note 3.

[10] Cole, supra note 2.

[11] Chung, supra note 3.

[12] Id.

[13] Id.

[14] See id.