Pepper-Jackson’s case was the Supreme Court’s first examination of restrictions on transgender athletes, and it came on an emergency application from the state. Thursday’s action means a lower court’s order putting a hold on the law remains in place while the legal battles continue, but it is not a decision on the merits of the case.
As is customary, the majority did not explain its decision to uphold the lower court’s stay. But two of the nine justices, Clarence Thomas and Samuel A. Alito Jr., dissented and said they would have granted West Virginia’s request to allow the law to be implemented.
Alito wrote that the court will be “required to address in the near future” whether federal law or the Constitution “prohibits a State from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.”
“Enforcement of the law at issue should not be forbidden by the federal courts without any explanation,” Alito wrote.
In a landmark decision in 2020, the Supreme Court ruled that a federal law that protects employees against sex discrimination extends to gay and transgender workers. Alito wrote the lead dissent in that case as well.
West Virginia, backed by Republican attorneys general in 21 additional states, asked the Supreme Court to allow the athletics law to take effect, saying it is urgently needed to protect female athletes from players classified as male at birth who would otherwise have an advantage.
Under the law, anyone can compete on male and coed teams, but only those designated as female at birth can play on girls’ teams.
The measure is part of a wave of recent legislation directed at transgender and gay individuals, much of which restricts access to gender-affirming medical treatment, sports participation for transgender athletes, or teaching about gender identity and sexual orientation.
A recent wide-ranging Washington Post-KFF poll found that many transgender Americans experience stigma and systemic inequality in many aspects of their lives, but most were happy that they had transitioned. About a third (32 percent) say they began to understand their own gender identity when they were 10 or younger, and another third (34 percent) realized it between the ages of 11 and 17.
West Virginia Attorney General Patrick Morrisey (R) told the Supreme Court that an order from the U.S. Court of Appeals for the 4th Circuit that temporarily kept the law from taking effect “harms girls by displacing them from athletic standings and women’s sports teams. And it harms the voters of West Virginia by canceling their legislative choices by flat judicial decree.”
After the Supreme Court’s order, Morrisey in a statement called it a “procedural setback.” “We have a very strong case,” he said. “It’s just basic fairness and common sense to not have biological males play in women’s sports.”
Besides the other states, the West Virginia law was supported by a group of female athletes including tennis star Martina Navratilova. “A growing number of women and girls have been facing the humiliating and damaging experience of being forced to compete against males who identify as transgender in the women’s sports category,” their brief said. “Lawmakers in West Virginia passed a law to put a stop to this abusive and discriminatory practice.”
Becky, who has presented as a girl since fourth grade and whose name has been legally changed, is the only transgender athlete in the state known to be affected. She receives puberty-delaying treatment and estrogen hormone therapy, and has not gone through puberty, according to her brief.
Becky’s legal team, including the American Civil Liberties Union and Lambda Legal, told the court there is no need for an emergency ruling while the appeals court considers whether the law is constitutional. For two seasons, Becky has participated on the cross-country and track teams, and her lawyers say there is no evidence she has displaced other girls who want to be on the team. Becky was cut from running events on the track team, and now participates in shot put and discus. She is not among the top performers, the court filings say.
Becky’s lawyers argue the West Virginia law violates the U.S. Constitution’s 14th Amendment guarantee of equal protection, as well as the Title IX civil rights law barring sex-based discrimination in education.
One of Becky’s lawyers, Joshua Block of the ACLU, tweeted after the order was released: “These Supreme Court cases involve real people. I’m so happy and relieved for Becky. There was absolutely no reason to crush the spirit of a 12 year old child who just wants run with her friends and be happy.”
Twenty states have laws similar to the one in West Virginia, according to tracking by the Movement Advancement Project, a think tank that supports transgender rights. But no appeals court has ruled on the constitutionality of such legislation.
U.S. District Judge Joseph R. Goodwin in Charleston blocked the law as applied to Becky soon after the West Virginia legislature passed it, allowing her to try out for the teams. But seven months later, after full briefing, Goodwin concluded the legislature had a valid purpose in passing the restrictions.
“While some females may be able to outperform some males, it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes,” Goodwin wrote. “This is not an overbroad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes.”
At the same time, Goodwin called the law a “solution in search of a problem.” Using the initials with which she is identified in court documents, he wrote that “not one child has been or is likely to be harmed by B.P.J.’s continued participation on her middle school’s cross country and track teams.”
The judge nonetheless lifted his stay on the law. Becky’s legal team appealed, and a divided panel of the U.S. Court of Appeals for the 4th Circuit put the law back on hold while it reviewed the case and has ordered briefing by June.
The Supreme Court typically waits until there is a full airing of legal issues in the lower courts before taking up a dispute. Becky’s lawyers say there is no reason to rush judgment here, where the only result would be to “order B.P.J. off the playing field where she has been for her entire middle school career to date and where her presence harms no one.”
The case is West Virginia v. B.P.J.
