Federal Appeals Court ‘Erroneously’ Rebuffs W.Va. Law Protecting Women’s Sports

A federal court is rejecting a Mountain State law which would have barred biological boys from competing in girls’ sports. On Tuesday, the Fourth Circuit Court of Appeals ruled against West Virginia’s “Save Women’s Sports Act,” arguing that the law cannot be applied to prohibit biological boys who identify as girls from participating in girls’ sports.

“Because West Virginia law and practice have long provided for sex-differentiated sports teams, the Act’s sole purpose — and its sole effect — is to prevent transgender girls [i.e. biological boys] from playing on girls teams,” Judge Toby Heytens wrote. “The question before us is whether the Act may lawfully be applied to prevent a 13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade from participating in her school’s cross country and track teams. We hold it cannot.” The appeals court’s decision extends an existing injunction on the “Save Women’s Sports Act” and sends the case back to a federal district court for further consideration.

The “Save Women’s Sports Act” was signed into law in 2021 by West Virginia Governor Jim Justice (R). A month after the Act took effect, a 13-year-old biological male who identifies as a girl named Becky Pepper-Jackson (identified as BPJ in legal documents) joined with the American Civil Liberties Union (ACLU) to file a lawsuit against the West Virginia State Board of Education, the Harrison County Board of Education, and the West Virginia Secondary School Activities Commission. BPJ and the ACLU argued that “enforcement of the Act against [him] violated the Equal Protection Clause and Title IX.” Initially, a district court granted a preliminary injunction, allowing BPJ to play on girls’ sports teams, but ultimately upheld the Act, rejecting BPJ’s and the ACLU’s claims on their merits.

Tuesday’s ruling from the appeals court vacated in part and reversed in part the lower court’s ruling, sending the case back to the district court for that court to address BPJ’s and the ACLU’s claims regarding Title IX. “We conclude the district court erred in granting summary judgment to the defendants on both of B.P.J.’s claims,” Heytens wrote. “We also conclude that, while it would be inappropriate to direct a grant of summary judgment to B.P.J. on her equal protection claims, the district court erred in not granting summary judgment to B.P.J. on her Title IX claims.”

“The Act declares a person’s sex is defined only by their ‘reproductive biology and genetics at birth,” Heytens’s ruling stated. “The undisputed purpose — and the only effect — of that definition is to exclude transgender girls from the definition of ‘female’ and thus to exclude them from participation on girls sports teams.” The ruling continued:

“The defendants also insist the Act does not discriminate based on gender identity because it treats all ‘biological males’ — that is, cisgender boys and transgender girls — the same. … But that is just another way of saying the Act treats transgender girls differently from cisgender girls, which is — literally — the definition of gender identity discrimination.”

In comments to The Washington Stand, Mary Szoch, director of the Center for Human Dignity at Family Research Council, said, “Allowing biological men to play women’s sports puts the physical and mental health and safety of women in jeopardy.” She continued, “Because there are biological differences between men and women that give men a physical advantage in sports, honesty and fair play demand that men cannot play women’s sports. To do otherwise robs them of the chance to compete fairly.”

Szoch, herself a former Division I basketball player for the University of Notre Dame, added, “Additionally, any female athlete can tell you that the locker room is a sacred space. It is where teammates become sisters, where women are vulnerable physically, emotionally, and mentally. Allowing men to invade this space places women at grave risk and — even if no physical harm comes to women — it prevents the natural bonding of teammates. The decision to reject the West Virgnia law brings about a sad day for female athletes. We look forward to the day when women’s safety is prioritized above men’s desires.”

Meg Kilgannon, senior fellow for Education Studies at Family Research Council, told TWS, “The West Virginia law protects women from the harms associated with men participating in women’s sports, whether that harm is losing a spot on the team to a man, losing a competition to a man, seeing and being seen by naked men in dressing rooms or showers…” She added, “The Bostock decision excepted Title IX from its ruling but ACLU and leftist judges persist in implicating Title IX when proclaiming ‘sexual orientation and gender identity rights.’ The U.S. Supreme Court will simply have to take up this issue. Meanwhile, girls in West Virginia will suffer as a result.”

West Virginia’s Republican Attorney General Patrick Morrisey vowed to appeal the appellate court’s decision. “I am deeply disappointed in the court’s divided decision today,” Morrisey said in a statement. He continued:

“We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field. We know the law is correct and will use every available tool to defend it. We remain confident in the merits of our defense. 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.”

Female athletes in West Virginia shared their disappointment in the court’s decision with former University of Kentucky swimmer Riley Gaines, who has become an outspoken opponent of allowing trans-identifying biological men to compete in women’s sports. “Hey ACLU, the girls don’t want this,” Gaines wrote on social media, sharing screenshots of text messages from female athletes. “History will not look kindly on the ACLU or anyone who clearly sends a message to girls that their rights don’t matter,” she added.

The majority of text messages Gaines shared were from young women who were being beaten in their sports by biological males who identify as female. Many of the young women expressed concern over the backlash they might face for speaking out. Referring to a male teammate who identifies as transgender, one girl wrote, “He’s beating us all, and I’ve heard he says very inappropriate things to the girls and that he goes in the locker room with the girls[.] So I know that if there’s one person that’s going to stand up to it, it’s gonna have to be me.” Another girl wrote, referring to opposing a male who identifies as transgender from playing in girls’ sports, “I also don’t want to get attacked for doing this.”

Judge G. Steven Agee dissented from his fellow jurists on Tuesday, writing, “West Virginia may separate its sports teams by biological sex without running afoul of either the Equal Protection Clause or Title IX. In coming to the opposite conclusion, the majority inappropriately expands the scope of the Equal Protection Clause and upends the essence of Title IX.” He continued to note:

“As West Virginia explained in its motion to stay the injunction, throughout the spring season, B.P.J. dominated track meets. Rather than finishing near the back of the pack — as B.P.J. contended would be the case in the motion for the injunction — B.P.J. consistently placed in the top fifteen participants at track-and-field events and often placed in the top ten. In so doing, over one hundred biological girls participating in these events were displaced by and denied athletic opportunities because of B.P.J. Additionally, B.P.J. earned a spot at the conference championship in both shot put and discus. Because participation in a conference championship event requires that the athlete place in the top three competitors at their school, judged by their best performance that season, two biological girls were denied participation in the conference championships because of B.P.J.”

Agee also stated that the court’s majority “without explanation, erroneously concludes that B.P.J. — a biological boy — is similarly situated to biological girls” in terms of addressing the teenager’s equal rights claims. He argued that the majority “erroneously implies that biology is irrelevant to sports,” noting that “it is beyond dispute that biological sex is relevant to sports and therefore that the person who is ‘in all relevant respects alike’ to a transgender girl is a biological boy. It is undisputed that after puberty biological males have physiological advantages over biological females that significantly impact athletic performance.”

“It is not enough — and is actually irrelevant when it comes to competitive sports — that B.P.J. identifies as a girl. Gender identity, simply put, has nothing to do with sports,” Agee wrote. “It does not change a person’s biology or physical characteristics. It does not affect how fast someone can run or how far they can throw a ball. Biology does. The majority was therefore wrong to conclusively determine that B.P.J. is similarly situated to biological girls based on B.P.J.’s gender identity alone.”

On Monday, the day before the appellate court’s ruling was issued, U.S. House Republicans wrote a letter to National Collegiate Athletic Association (NCAA) president Charlie Baker, calling on Baker to implement policies barring biological men from participating in women’s sports. “We are deeply concerned about the future of women’s sports and upholding the critical Title IX protections for women’s sports with the NCAA’s current policies,” the legislators insisted. “We urge the NCAA to follow the [National Association of Intercollegiate Athletics]’s lead on this issue and prohibit transgender athletes from competing in women’s sports.”

Earlier this year, attorney and anti-doping expert William Bock resigned from his position with the NCAA in protest against the organization’s failure to bar biological men from competing in women’s sports. “Although I may not have agreed with the wisdom of every rule in the NCAA rulebook,” Bock wrote in his resignation letter, “I believed the intent behind the NCAA’s rules was competitive fairness and protection of equal opportunities for student-athletes. This conviction has changed as I have watched the NCAA double down on regressive policies which discriminate against female student-athletes.”