US appeals court finds West Virginia transgender sports ban violates anti-discrimination law

The US Court of Appeals for the Fourth Circuit ruled on Tuesday that West Virginia’s ban on transgender girls competing on girls’ sports teams violates a transgender student’s rights under Title IX.

The law, which is known as the “Save Women’s Sports Act,” prohibits individuals who were assigned male at birth from competing on girls’ athletic teams. The act also says, however, that it shall not be “construed to restrict the eligibility of any student to participate in any… teams or sports designated as ‘males,’ ‘men,’ or boys.’” The court therefore found that the law prohibits only one category of students, transgender girls, from participating in sports teams that correspond with their gender.

The plaintiff, a 13-year-old transgender girl named Becky Pepper-Jackson, filed suit against the West Virginia State Board of Education in 2021. She claimed the act violated her right to equal protection under the Fourteenth Amendment as well as her rights under Title IX, a federal law that prohibits discrimination on the basis of sex in federally-funded educational programs.

The court found for the plaintiff on the Title IX claim, stating the plaintiff demonstrated that “applying the Act to her would treat her worse than people to whom she is similarly situated, deprive her of any meaningful athletic opportunities, and do so on the basis of sex.”  The court stated, “‘[E]motional and dignitary harm… is legally cognizable under Title IX’ and it requires no feat of imagination to appreciate the ‘[t]he stigma of being’ unable to participate on a team with one’s friends and peers.” The ruling also stated that the act “goes further by requiring [the plaintiff] to take on additional harms to avoid forfeiting the ability to play school sports altogether.” Provided that the plaintiff has been publicly living as a girl for more than five years, changed her name and sex on her birth certificate, takes puberty-blocking medication, and has only participated on girls’ sports teams, the court found that “offering [her] a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all” and would “directly contradict the treatment protocols for gender dysphoria.”

The court declined to overrule the law or prohibit government officials from creating and drawing the line between separate teams for boys and girls. The ruling stated, “We also do not hold that Title IX requires schools to allow every transgender girl to play on girls’ teams, regardless of whether they have gone through puberty and experienced elevated levels of circulating testosterone.” The court also reversed the lower court’s decision that found in the defendants’ favor on the equal protection claim and sent that issue back to the lower court.

West Virginia Governor Jim Justice signed the bill into law in April 2021, and the American Civil Liberties Union (ACLU), the ACLU of West Virginia, and LGBTQ+ rights group Lambda Legal filed suit on behalf of the plaintiff a month later. Legal Director of the ACLU of West Virginia Aubrey Sparks celebrated the court’s ruling, stating, “We hope today’s ruling sends a message of hope to the trans youth of West Virginia… and a message of warning to politicians who continue to dehumanize this vulnerable population.”

West Virginia Attorney General Patrick Morrisey, however, said he planned to appeal the ruling. He stated, “We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field.”

West Virginia is one of 24 states that ban transgender students from participating in sports consistent with their gender identity. In January, the Ohio legislature overrode the governor’s veto of a bill that would restrict transgender participation in sports, but an Ohio court temporarily blocked that ban on Tuesday. Earlier this month, Wisconsin Governor Tony Evers vetoed a bill that would require schools to separate sports based on students’ assigned sex at birth.