Judge allows West Virginia's transgender athlete ban to continue

 January 7, 2023

The Washington Examiner reports that a federal judge is allowing a West Virginia ban that stops transgender individuals from competing in women's sports to continue. 

The law at the center of this case is West Virginia's H.B. 3293, the "Save Women's Sports Bill."

The law, in part, states:

Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.

The legislators justified this position, explaining:

In the context of sports involving competitive skill or contact, biological males and biological females are not in fact similarly situated. Biological males would displace females to a substantial extent if permitted to compete on teams designated for biological females . . .

The lawsuit

This above law, after its passage in 2021, was challenged by the American Civil Liberties Union on behalf of an 11-year-old transgender girl named Becky Pepper-Jackson.

The lawsuit was filed against West Virginia as well as the Harrison County school board after Pepper-Jackson was stopped from joining the girl's cross-country team.

ACLU argued that this is a violation of Pepper-Jackson's rights under both the 14th Amendment's Equal Protection Clause and Title IX, which is a federal statute that prohibits sex-based discrimination.

Southern District of West Virginia Judge Joseph Goodwin, however, disagreed.

Goodwin, an appointee of former President Bill Clinton, found that the West Virginia law is not unconstitutional.

Goodwin's ruling

In his Equal Protection analysis, Goodwin found that the law is obviously intended to "prevent transgender girls from playing on girl's sports teams."

But, a law like this, which creates a gender-based classification, can be upheld if it is substantially related to an important government interest. And, Goodwin found that such an interest exists.

Goodwin wrote:

The fact is, however, that a transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males. And biological males generally outperform females athletically. 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.

West Virginia Attorney General Patrick Morrisey celebrated the decision, saying, "this is not only about simple biology, but fairness for women’s sports, plain and simple."

"Opportunities for girls and women on the field are precious and we must safeguard that future," Morrisey added. "Protecting these opportunities is important, because when biological males compete in a women’s event women and girls lose their opportunity to shine."

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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