West Virginia says it will appeal ruling that allowed transgender teen athlete to compete

CHARLESTON, W.Va. -- West Virginia will ask the U.S. Supreme Court to weigh in on an appeals court ruling that allowed a transgender athlete to compete on her middle school teams, Attorney General Patrick Morrisey said Wednesday.

"We're not going to allow the elites in the swamp to impose their values on West Virginia citizens," Morrisey said at a news conference in the state Capitol.

A 4th U.S. Circuit Court of Appeals panel ruled 2-1 last week that West Virginia's transgender sports ban violated Becky Pepper Jackson's rights under Title IX, the federal civil rights law that prohibits sex-based discrimination in schools. Jackson, 13, has been taking puberty-blocking medication and publicly identified as a girl since she was in the third grade.

The court ruled in favor of the American Civil Liberties Union, its West Virginia chapter and the LGBTQ interest group Lambda Legal. They sued the state, county boards of education and their superintendents in 2021 after Republican Gov. Jim Justice signed the bill into law.

In February 2023, the appeals court blocked the state's bid to kick her off her middle school cross country and track and field teams if the law were enforced.

On April 16, two days after the latest ruling, Jackson won the shot put and finished second in the discus at her county's middle school championships. Five competitors from a rival school did not participate in the shot put, according to meet statistics. Video posted online showed the rivals each stepping into and then out of the shot-put circle and refusing to compete.

All five of the students were present at Wednesday's news conference and received a standing ovation from Morrisey and other supporters.

"My hope is that this case will get revisited, and I'm asking all men and all women that believe in women's sports to get on board and help us save women's sports," said 14-year-old Emmy Salerno of Shinnston, West Virginia -- one of the female athletes who protested at the meet.

After the news conference ended, LGBTQ+ advocacy organization Fairness West Virginia Communications Director Jack Jarvis released a statement saying cases like this one "contribute to a hostile environment where trans youth are much more likely to experience harassment, bullying and discrimination."

"Transgender women are women, period," Jarvis said. "If you want to support women, you need to support all women. Becky and all of the other trans youth across our state deserve to fully participate in school activities and athletic events."

The appeals court noted that Jackson has been living as a girl for over five years and changed her name, and the state of West Virginia has issued her a birth certificate listing her as female. The court said she takes puberty-blocking medication and estrogen hormone therapy. Starting in elementary school, she has participated only on girls' athletic teams.

"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. That is all Title IX requires," Judge Toby Heytens wrote.

Sports participation is one of the main fronts in legislative and legal battles in recent years over the role of transgender people in U.S. public life. Most Republican-controlled states have passed restrictions on participation, as well as bans on gender-affirming health care for minors. Several have also restricted which bathrooms and locker rooms transgender people can use, particularly in schools.

West Virginia is one of at least 24 states with a law on the books barring transgender women and girls from competing in certain women's or girls sports competitions.

"If we allow this decision to stand, then those laws are in danger, too," Morrisey said during the news conference.

The Biden administration originally planned to release a new federal Title IX rule addressing both campus sexual assault and transgender athletes. Earlier this year, the department decided to split them into separate rules, and the athletics rule now remains in limbo.

Morrisey said the state will be filing its case some time over the next month. He called West Virginia's law "reasonable," adding that "boys have a competitive advantage: They're bigger, they're faster, they're stronger."

"There is nothing, nothing equal about having males compete against men and women," he said. "Gender identity is beside the point."