A federal judge recently issued a ruling upholding West Virginia’s Transgender Sports Law as being constitutional.
A bill creating the new law was approved by both chambers of the West Virginia Legislature during the 2021 legislative session. It was signed into law by Gov. Jim Justice in April and took effect July 8 of that year.
Under the law, “all interscholastic, intercollegiate, intramural or club athletic teams or sports that are sponsored by any public secondary school or a state institution of higher education” must be “expressly designated” as one of the following, based on biological sex: male, men or boys; female, women or girls; or coed or mixed.
The law defines biological sex as “an individual’s physical form as a male or female based solely on the individual’s reproductive biology and genetics at birth.”
It outlines that “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 lawsuit was filed in May 2021 by Lambda Legal, the American Civil Liberties Union, the ACLU of West Virginia, and Cooley LLP.
The entities filed the suit on behalf of Becky Pepper Jackson, a then-11-year-old transgender girl who was interested in trying out for the girls cross county team at her school.
The plaintiff made two separate motions for summary judgement alleging the law violates both Title IX and the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.
The ruling, issued by Judge Joseph Goodwin of the U.S. District Court for the Southern District of West Virginia, concluded the law does not violate either provision.
In considering the Equal Protection challenge, the court ruled that “The legislature’s definition of ‘girl’ as being based on ‘biological sex’ is substantially related to the important government interest of providing equal athletic opportunities for females.”
In the Title IX challenge, Goodwin wrote that the defendants argued “while it did not define the term, Title IX used ‘sex’ in the biological sense because its purpose was to promote sex equality. Therefore, they argue that (House Bill) 3293 furthers, not violates, Title IX. I agree.”
West Virginia Attorney General Patrick Morrisey celebrated the ruling the day it was issued.
“This is not only about simple biology, but fairness for women’s sports, plain and simple,” Morrisey said. “Opportunities for girls and women on the field are precious and we must safeguard that future. Protecting these opportunities is important, because when biological males compete in a women’s event women and girls lose their opportunity to shine.”
Morrisey has been a vocal supporter of the law since its passage.
In a joint statement following the ruling, the organizations that filed the lawsuit expressed their disappointment.
“The District Court’s ruling is disappointing,” the statement said. “The fact is the equal and fair participation of transgender youth takes nothing away from cisgender youth and helps to maintain a level playing field for all youth.
“While we consider our next steps, we extend our heartbreak and solidarity to the transgender West Virginians impacted by this law and the families whose trans youth are being needlessly harmed by it.”
Transgender youth competing in sports has been a contentious topic over the past few years. As of May 2022, 18 states, including West Virginia, had passed laws limiting or banning transgender women and girls from participating in women’s sports, according to a New York Times report.
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