Federal appeals court blocks West Virginia from enforcing anti-trans sports ban against 13-year-old girl

A federal appeals court ruled Tuesday that West Virginia cannot enforce its anti-transgender sports ban against a 13-year-old girl, dealing a blow to one of nearly two dozen such laws enacted by GOP-led states in recent years.

The 4th Fourth Circuit Court of Appeals said in a 2-1 decision that the state cannot “lawfully” enforce its law against Becky Pepper-Jackson, a transgender athlete who has been challenging the ban since it was enacted in 2021.

“The question before us is whether the Act may lawfully be applied to prevent a 13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade from participating in her school’s cross country and track teams. We hold it cannot,” Circuit Judge Toby Heytens wrote in the decision, which was joined by Judge Pamela Harris.

The ruling is a major win for LGBTQ advocates, who have brought challenges against a slew of anti-trans laws enacted by Republican-led states over the past several years, including ones prohibiting minors from accessing gender-affirming care.

Signed into law by West Virginia Republican Gov. Jim Justice in 2021, the “Save Women’s Sports Act” bans transgender women and girls from participating on public school sports teams consistent with their gender identity.

The court’s majority said the law violates Pepper-Jackson’s rights under Title IX, a federal law that prohibits discrimination on the basis of sex at schools that receive federal aid.

“B.P.J. has shown 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,” Heytens wrote.

Judge Steven Agee wrote in a partial dissent that “allowing transgender girls – regardless of any advantage – as participants in biological girls’ sports turns Title IX on its head and reverses the monumental work Title IX has done to promote girls’ sports from its inception.”

Agee said he would have allowed the state to enforce the law against Pepper-Jackson and concluded his dissenting opinion by writing: “One can only hope that the Supreme Court will take the opportunity with all deliberate speed to resolve these questions of national importance.”

Lower courts had temporarily blocked West Virginia from enforcing the law against Pepper-Jackson, whose lawsuit against the sports ban asked that the state be prohibited from enforcing it against her, instead of declaring it totally invalid. The federal judge who initially blocked the law in 2021 reversed course last year and sided with state officials.

As the yearslong litigation played out, West Virginia last year asked the US Supreme Court to let it enforce the law while the lower courts considered the case, but the justices, in an unsigned order, declined. Conservative Justices Clarence Thomas and Samuel Alito said they would have granted the request.

Joshua Block, an attorney for the American Civil Liberties Union who represents Pepper-Jackson, said in a statement Tuesday that the appeals court ruling “is a tremendous victory for our client, transgender West Virginians, and the freedom of all youth to play as who they are.”

“It also continues a string of federal courts ruling against bans on the participation of transgender athletes and in favor of their equal participation as the gender they know themselves to be,” Block said.

West Virginia Attorney General Patrick Morrisey, a Republican, said he stands by the law and that the state “will use every available tool to defend it.”

“I am deeply disappointed in the court’s divided decision today,” he said in a statement, going on to argue that the law “is ‘constitutionally permissible’ and the law complies with Title IX.”

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