West Virginia asks Supreme Court to allow transgender girls sports ban

WASHINGTON — West Virginia Attorney General Patrick Morrisey on Thursday asked the conservative-majority Supreme Court to allow the state to enforce a ban on transgender athletes' participating in girls' sports.

Morrisey, a Republican, filed an emergency application at the court late Thursday. If his request is granted, the state would be able to enforce a law enacted in 2021 called the Save Women's Sports Act.

In barring transgender girls from participating in girls' sports at the middle school, high school and college levels, the law says gender is "based solely on the individual's reproductive biology and genetics at birth." As such, a female is a person "whose biological sex determined at birth as female," it says.

"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," Morrisey said in a statement.

The law was challenged by a transgender girl, Becky Pepper-Jackson, then 11, who wanted to try out for the cross country and track teams in middle school. She is backed by the American Civil Liberties Union and the LGBTQ group Lambda Legal.

Her lawyers said the law violated the 14th Amendment to the Constitution, which requires that the law apply equally to everyone, as well as Title IX of the Education Amendments Act of 1972, which prohibits discrimination in education.

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A federal judge initially blocked the law but concluded in January that it was most likely legal and allowed it to go into effect. Becky appealed, and last month the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals again put the law on hold.

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The West Virginia law, backed by the conservative religious legal group Alliance Defending Freedom, is just one of a series of measures Republican states enacted that seek to restrict transgender athletes' participation in sports.

The Supreme Court in 2020 ruled in favor of transgender rights in concluding that a federal law that bars sex discrimination in employment applied to gay and transgender people. It has not yet ruled on whether the same reasoning applies to Title IX.

In 2021, the court declined to take up a case about the question of whether transgender students can use school bathrooms that corresponds with their gender identities.