Supreme Court is asked to take first transgender sports case

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The state of West Virginia and a former collegiate soccer player are asking the Supreme Court to back a state law that bans male student-athletes who present as female from playing on girls’ school sports teams.

The legal action comes as West Virginia and other states are taking action to make sure women and girls continue to have access to school sports even as men who identify as women are taking women’s spots on women’s sports teams. Idaho, Mississippi, Montana, Arkansas, and Florida have also passed legislation that keeps males from competing in women’s sports.

West Virginia Attorney General Patrick Morrisey, a Republican, said on March 9 that he was preparing an emergency application to be filed at the Supreme Court asking it to protect the 2021 West Virginia law known as the Save Women’s Sports Act. The U.S. Court of appeals for the 4th Circuit issued an injunction putting the state law on hold while a lawsuit brought by the American Civil Liberties Union (ACLU) remains pending.

“This simple law demands that girls and women get their fair share of opportunities in sports,” Morrisey said at a press conference.

“The recent injunction decision … is a minor setback, but 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.”

“That’s why we’re taking this case to the Supreme Court,” Morrisey said.

The 4th Circuit recently reinstated a preliminary injunction that a federal district court in West Virginia had initially issued against the act in July 2021. The same district court lifted the injunction this year, finding the state legislature’s definition of “girl” and “woman” in the context of the Save Women’s Sports Act is “constitutionally permissible”—and that the law complies with Title IX, a federal law that bans sex-based discrimination in education.

The circuit court’s injunction “harms biologically female athletes, too, who will continue to be displaced as long as biological males join women’s sports teams,” Morrisey said in the emergency application.

The circuit court’s “decision undermines equal protection—it doesn’t advance it,” he said.

At the same time, a female former soccer player at West Virginia State University also is preparing to ask the Supreme Court to back the Save Women’s Sports Act.

Represented by the conservative Alliance Defending Freedom (ADF), Lainey Armistead says the courts should respect the West Virginia law, a state statute ADF says is “a commonsense law that protects equal opportunity, fairness, and safety for women.”

At WVSU, Armistead played left back for the Yellow Jackets and served as team captain.

To Armistead, soccer is much more than “just a game”—she calls it a “passion and a life-defining pursuit,” according to court papers the ADF referenced in a statement.

“Soccer was like the air I breathed growing up. I first kicked a soccer ball at 3 years old—almost as soon as I could walk,” she said.

“I have made many sacrifices over the course of my athletic career to play the sport that I love. I have missed school dances, spring breaks, family events, and friends’ birthdays. I have given up my weekends and free time. I stay at school late for practice and get up early to train.”

“But I make these sacrifices because I want to be the best that I can be. I want to win—not just for myself, but also for my teammates.”

ADF said on March 9 that Armistead’s documentation will soon be filed with the Supreme Court.

The federal district court previously granted Armistead’s request to intervene in the underlying lawsuit that is heading to the Supreme Court.

The ACLU is arguing in the lawsuit that the West Virginia statute violates the rights of middle school student Becky Pepper-Jackson, an 11-year-old who was born male but now identifies as female. Pepper-Jackson was prevented from joining the girls’ cross-country team.

The ACLU says the statute violates the child’s rights under the Equal Protection Clause in the 14th Amendment to Constitution and Title IX.

The Epoch Times reached out to the ACLU for comment but did not receive an immediate reply.

This article by Matthew Vadum appeared March 10, 2023, in The Epoch Times.

Photo: West Virginia Attorney General Patrick Morrisey, a Republican