The U.S. Supreme Court rejected Thursday the West Virginia attorney general’s plea to allow enforcement of the state’s ban on biological males in female sports by lifting a temporary lower-court injunction.
The high court denied without explanation 7-2 the request to vacate the injunction on the 2021 Save Women’s Sports Act reinstated in February by the Fourth Circuit Court of Appeals pending the outcome of an appeal by the American Civil Liberties Union.
Dissenting was Justices Samuel Alito, joined by Justice Clarence Thomas, who argued that West Virginia is “entitled to relief.”
West Virginia Attorney General Patrick Morrisey said he was “deeply disappointed” but confident the state law would ultimately be upheld.
“This is a procedural setback, but we remain confident that when this case is ultimately determined on the merits, we will prevail,” said the Republican Morrisey in a statement. “We maintain our stance that this is a common sense law — we have a very strong case. It’s just basic fairness and common sense to not have biological males play in women’s sports.”
The ruling means that 12-year-old Becky Pepper-Jackson, the plaintiff represented by the American Civil Liberties Union, may continue to participate on the girls’ cross-country and track teams. The male-born student identifies as female and has been taking puberty blockers and cross-sex hormones.
The ACLU and Lambda Legal said they were “grateful that the Supreme Court today acknowledged that there was no emergency and that Becky should be allowed to continue to participate with her teammates.”
“This was a baseless and cruel effort to keep Becky from where she belongs — playing alongside her peers as a teammate and as a friend,” said the statement.
Twenty states have enacted bans on male-born athletes competing in female scholastic sports. Three of the laws have been challenged in court, but the West Virginia case was the first to receive a ruling from a federal judge when U.S. District Judge Joseph Goodwin upheld the state law in January.
“The state is permitted to legislate sports rules on this basis because sex, and the physical characteristics that flow from it, are substantially related to athletic performance and fairness in sports,” said Judge Goodwin in the 23-page opinion.
The WV AG is disappointed at the SCOTUS decision Thursday that denied the state’s application to vacate the lower court’s injunction against the state’s female sports law during appeal to the United States Court of Appeals for the 4th Circuit.
— WV Attorney General (@WestVirginiaAG) April 6, 2023
READ MORE: https://t.co/9BjAGS0NAG pic.twitter.com/NfVrBpBTdR
Justice Alito cited the Fourth Circuit’s 2-1 decision to reinstate the injunction without comment the month after Judge Goodwin lifted the injunction.
“Among other things, enforcement of the law at issue should not be forbidden by the federal courts without any explanation,” he said.
He acknowledged that the state waited 18 months after the first injunction was filed to challenge the second injunction, undermining the urgency of his application.
“If we put aside the issue of the State’s delay in seeking emergency relief and if the District Court’s analysis of the merits of this case is correct, the generally applicable stay factors plainly justify granting West Virginia’s application,” Justice Alito said. “For these reasons, I respectfully dissent.”
Christiana Kiefer, Alliance Defending Freedom senior counsel, emphasized that the high court’s Thursday decision “didn’t end this case.”
“While we hoped the Supreme Court would lift the injunction that the 4th Circuit imposed — with no explanation — on West Virginia’s women’s sports law, we remain committed to protecting female athletes by continuing to litigate this case in the court of appeals, and across the country through other lawsuits defending women’s sports,” she said.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
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