West Virginia filed an appeal on July 16 with the U.S. Supreme Court to defend the state’s law that prevents male athletes from playing on school sports teams designated for females.
The state’s Save Women’s Sports Act, enacted in 2021, stipulates that biological females’ teams based on “competitive skill” or involving “a contact sport” must not be open to males.
A lawsuit was initiated in 2021 by the American Civil Liberties Union (ACLU) on behalf of Becky Pepper-Jackson, a 13-year-old male who identifies as female. The student was initially prevented from joining a girls’ cross-country team before a lower court blocked West Virginia’s law.
The student sued the state, arguing that the Save Women’s Sports Act ran afoul of the Equal Protection Clause of the U.S. Constitution as well as the federal Title IX civil rights law, which forbids sex-based discrimination at any school that receives federal funding.
The petition for certiorari, or review, in State of West Virginia v. B.P.J., was docketed by the Supreme Court on July 16.
It is unclear when the Supreme Court will consider the petition. At least four of the nine justices must approve the petition for the case to proceed to the oral argument stage.
Including West Virginia, 24 states have enacted laws to prevent “transgender students from participating in sports consistent with their gender identity,” the Movement Advancement Project, a pro-LGBT nonprofit think tank, reports.
The case goes back to July 2021 when Judge Joseph R. Goodwin ruled in favor of the student, temporarily blocking the law. The judge found that the Title IX and constitutional claims were likely to succeed at trial.
But in January 2023, Judge Goodwin changed his mind and lifted the temporary ban on the state law. He found that the state’s “definition of ‘girl’ as being based on ‘biological sex’ was substantially related to the important government interest of providing equal athletic opportunities for females.”
Then on April 16 of this year, a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit blocked enforcement of the state law.
Circuit Judge Toby Heytens wrote that the student 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. That is all Title IX requires.”
The circuit court sent the case back to the district court with instructions to grant judgment in favor of the student on the Title IX claim.
On July 12, West Virginia Attorney General Patrick Morrisey announced the Supreme Court filing at a press conference.
“We must protect our young women,” said Mr. Morrisey, who is the Republican candidate for West Virginia governor in the upcoming Nov. 5 election.
“When biological males compete and win in a women’s event, female athletes lose their opportunity to shine,” he said.
“Boys have a competitive advantage. They’re bigger, they’re faster, they’re stronger.”
The new petition states that the West Virginia Legislature “concluded that biological boys should compete on boys’ and co-ed teams but not girls’ teams” because of the “inherent physical differences between biological males and biological females.”
West Virginia asked the Supreme Court to decide if Title IX and the Equal Protection Clause prevent a state from requiring that girls’ and boys’ sports teams be “based on biological sex determined at birth.”
“Women’s sports flourished” since laws like Title IX that “ensured that boys’ and girls’ sports teams received equal support” were enacted a half-century ago, the petition states.
But in recent years “biological males identifying as female have increasingly competed against females in women’s sports” and this has “demoralized” female athletes and led to injuries among them “when facing, bigger, stronger males.”
The petition quoted Fourth Circuit Judge Steven Agee, who stated in his dissent from the April 16 order that he hoped the Supreme Court would “take the opportunity with all deliberate speed to resolve these questions of national importance.”
In April 2023, the Supreme Court declined to lift a previous Fourth Circuit order blocking the law.
Justices Samuel Alito and Clarence Thomas dissented.
The Epoch Times reached out to the ACLU for comment but had not received a reply at the time of publication.
This article by Matthew Vadum appeared July 16, 2024, in The Epoch Times.
Photo: West Virginia Attorney General Patrick Morrisey, a Republican