West Virginia to ask Supreme Court to allow transgender girls sports ban

Lawrence Hurley
Then-Republican U.S. Senate candidate Patrick Morrisey speaks at a campaign event October 22, 2018 in Inwood, West Virginia.
Win Mcnamee | Getty Images

WASHINGTON — West Virginia Attorney General Patrick Morrisey on Thursday said he is asking the conservative-majority Supreme Court to allow the state to enforce a ban on transgender athletes participating in girls' sports.

Morrisey, a Republican, said he would file an emergency application at the court later on Thursday. If his request is granted, the state would be able to enforce a law enacted in 2021 called the Save Women's Sports Act.

In barring transgender girls from participating in girls' sports at middle school, high school and college levels, the law says gender is "based solely on the individual's reproductive biology and genetics at birth." As such, a female is a person "whose biological sex determined at birth as female," the law says.

"We are resolute in protecting opportunities for women and girls in sports because when biological males win in a women's event — as has happened time and again — female athletes lose their opportunity to shine," Morrisey said in a statement.

The law was challenged by a then-11-year-old transgender girl, Becky Pepper-Jackson, who wanted to try out for the cross country and track teams in middle school. She is backed by the American Civil Liberties Union and LGBTQ group Lambda Legal.

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Her lawyers said the law violated the 14th Amendment to the Constitution, which requires that law apply equally to everyone, as well as Title IX of the Education Amendments Act of 1972, which prohibits discrimination in education.

A federal judge initially blocked the law, but in January this year concluded that the law was likely legal and allowed it to go into effect. Pepper-Jackson appealed and last month the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals again put the law on hold.

The West Virginia law, backed by conservative religious legal group Alliance Defending Freedom, is just one of a series of measures enacted by Republican states that have sought to restrict transgender athletes from participating in sports.

The Supreme Court in 2020 ruled in favor of transgender rights in concluding that a federal law that bars sex discrimination in employment applied to gay and transgender people. It has not yet ruled on whether that same reasoning applies to Title IX.

In 2021, the court declined to take up a case on the question of whether transgender students can use the school bathroom that corresponds with their gender identity.