West Virginia Attorney General Patrick Morrisey is asking the U.S. Supreme Court to allow the state to enforce its ban on biological males in female sports, offering the high court its first opportunity to take up the fierce debate over fairness versus inclusion in girls’ and women’s athletics.
Mr. Morrisey said his office would file Thursday an application with the Supreme Court to vacate the temporary injunction on the state’s 2021 Save Women’s Sports Act issued last month by the Fourth Circuit Court of Appeals.
The appeals court ruled in favor of Becky Pepper-Jackson, a 12-year-old male-born student who identifies as female and wants to compete on the girls’ track team.
“To me, this is a matter of basic fairness,” the Republican Morrisey said at a press conference in Charleston. “I hope that this isn’t going to be a partisan issue. This should be: ’Let’s find a way to respect women’s sports.’”
His hopes aside, the issue has indeed become fiercely partisan, pitting Republicans advocating for single-sex sports against Democrats who want transgender athletes to be able to participate in scholastic athletics based on their gender identity.
The debate moves next to the U.S. House floor after the GOP-led House Education and the Workforce Committee passed along party lines the Protection of Women and Girls in Sports Act of 2023 after a marathon 16-hour markup session that began Wednesday and wrapped up early Thursday.
“We have seen what happens when biological males are allowed to compete in women’s sports: women are deprived of an equal playing field and stripped of opportunities to succeed in sports to which they dedicated their entire lives,” said committee Chairwoman Virginia Foxx, North Carolina Republican.
Attorneys for the American Civil Liberties Union and Lambda Legal, which represent Becky and Becky’s mother Heather Jackson, blasted Thursday what they called “West Virginia’s latest attack on transgender youth.”
“Becky is a 12-year-old girl who has tried out and been accepted as a member of the girls track team, with no issue from her teammates,” said the groups in a statement. “She has been receiving puberty-delaying medication and gender-affirming hormones. It is unconscionable that the West Virginia Attorney General wants to prevent Becky from participating in sports with her peers.”
The WV AG is taking the fight for fairness in women’s sports all the way to the U.S. Supreme Court.
— WV Attorney General (@WestVirginiaAG) March 9, 2023
Learn more at https://t.co/DsOX6maFT4. pic.twitter.com/BRpjZhd6T4
Eighteen states have passed laws barring biological males from competing against females in scholastic sports. Several have been challenged in court, but earlier this year the West Virginia law became the first to receive a decision from a federal court.
In January, U.S. District Court Judge Joseph R. Goodwin upheld the state law and dissolved a previous injunction, declaring that the West Virginia Legislature was within its rights to define “male” and “female” for purposes of scholastic sports.
The appeals panel disagreed, reinstating a previous injunction in a 2-1 decision, which allowed Becky to try out for the girls’ spring track team on Feb. 27, Lambda Legal said.
Mr. Morrisey cited recent high-profile cases, including the Connecticut high school girls who sued in 2020 after they lost track-and-field championship titles and opportunities to two male-to-female transgender students.
He also pointed to former University of Pennsylvania swimmer Lia Thomas, who became last year the first biological male to win an NCAA Division I women’s athletics crown.
“The recent injunction decision from the United States Court of Appeals for the Fourth Circuit is a minor setback, but we remain confident in the merits of our defense,” Mr. Morrisey said. “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.”
Filing jointly with Mr. Morrisey’s office is the conservative Alliance Defending Freedom, which intervened in the case in 2021 on behalf of Lainey Armistead, a then-West Virginia collegiate soccer player.
“Lainey got involved in this case to make sure no woman would suffer and be forced to compete against a male in her sport,” said ADF legal counsel Rachel Csutoros. “It’s unfair and it’s unsafe. No male should be allowed to take athletic opportunities away from women. That’s why we’re giving the Supreme Court a chance to protect fairness in women’s sports from today’s threats.”
Both sides are lining up support ahead of the Supreme Court filings. Mr. Morrisey said he expects other states and a coalition of female athletes to back his application, while Lambda Legal cited previous support from nearly 200 female athletes, including Billie Jean King, Megan Rapinoe and Candace Parker.
The Supreme Court has yet to take up the issue of transgender inclusion in education, but the court ruled in its 2020 decision in Bostock v. Clayton County that Title VII bars employment discrimination based on sexual orientation and gender identity.
The Biden administration cited the opinion to defend its proposed rulemaking to expand Title IX, which bars sex discrimination in education, to include sexual orientation and gender identity. A final rule from the Education Department is expected in May.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
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