By Mark Sherman | Associated Press
WASHINGTON — The Supreme Court on Thursday allowed a 12-year-old transgender girl in West Virginia to continue competing on her high school’s girls’ sports teams as a state ban lawsuit continues.
The judges refused to interfere with an appeals court order that allowed the girl, Becky Pepper-Jackson, to continue playing on her school’s track and field and cross-country teams, where she regularly finishes in the back of the pack.
Justices Samuel Alito and Clarence Thomas allegedly allowed West Virginia to uphold the law against Pepper-Jackson.
Pepper-Jackson is in the middle of outdoor track season. She had filed a lawsuit against the law, the Save Women’s Sports Act, which West Virginia lawmakers passed in 2021. A federal appeals court had allowed her to participate as she appealed a lower court ruling upholding West Virginia law.
In an emailed statement from the West Virginia chapter of the ACLU to The Associated Press on Thursday evening, Pepper-Jackson said, “I am so glad the Supreme Court saw that this stay was not an emergency. I still play with my friends and teammates on the track team. That’s all I want to do, be with my friends and be the girl I am.”
The Supreme Court announcement came on the same day the Biden administration proposed a new rule that would prevent schools and colleges from banning transgender athletes outright, but allow certain exceptions to promote fairness or reduce injuries.
Two weeks ago, athletics banned transgender athletes from international competitions. According to Movement Advancement Project, a pro-LGBTQ think tank, West Virginia is one of 20 states that ban transgender athletes from participating in sports that are consistent with their gender identity.
West Virginia Governor Jim Justice, a Republican, also recently signed into law a bill banning gender-affirming care for minors as part of an effort in Republican-led states across the country to curb LGBTQ+ rights this year.
West Virginia’s school sports league law prohibits transgender athletes from female teams. Signed by law enforcement, the law defines male and female by looking at the student’s “reproductive biology and genetics at birth.” It applies to middle and high schools, as well as colleges.
By law, male athletes can play on male or mixed teams, and female athletes can play on all teams.
In a statement after the trial, West Virginia Attorney General Patrick Morrisey said he is “deeply disappointed with the decision of the U.S. Supreme Court.”
Organizations that have supported Pepper-Jackson said they were “grateful”. “This was an unwarranted and vicious attempt to keep Becky away from where she belongs — playing alongside her colleagues as a teammate and as a friend,” the American Civil Liberties Union, West Virginia ACLU and Lambda Legal said in a joint statement.
Tennis great Martina Navratilova was one of dozens of female athletes to support West Virginia on the Supreme Court, along with Republican attorneys general in 21 states.
U.S. District Court Judge Joseph Goodwin initially barred West Virginia from enforcing the law and allowed Pepper-Jackson to compete on the girls’ teams while the case continued.
But Goodwin eventually found that the law does not violate the Constitution or Title IX, the landmark 1972 gender equality legislation. Goodwin, an appointee of former President Bill Clinton, ruled that the law could remain in effect as long as the appeals process continued.
Lawyers for the girl, known in the lawsuit by the initials BPJ, appealed. A three-judge panel of the 4th U.S. Circuit Court of Appeals voted 2-1, without issuing any opinion, to put the law on hold while it considers the case.
The two appeals court judges who voted to put the law on hold were Pamela A. Harris, an appointee of former President Barack Obama, and Toby J. Heytens, an appointee of President Joe Biden. Judge G. Steven Agee, an appointee of former President George W. Bush, disagreed.
The Supreme Court gave no justification for its action on Thursday.
In dissent, Alito wrote, “I would grant the state’s application. Among other things, the enforcement of the law in question should not be prohibited without explanation by the federal courts.” Thomas joined the disagreements.
When asking the Supreme Court to allow the law to go into effect as the case unfolds, West Virginia told the judges: “This case implies a question full of emotions and different perspectives. That’s all the more reason to defer pending appeals to state lawmakers. … The decision had to be made by the West Virginia legislature. The end of this process will confirm that it is valid.”
Pepper-Jackson is identified by her initials in court documents due to federal rules prohibiting identifying minors. But Pepper-Jackson and her mother have repeatedly spoken out on the issue.
Associated Press reporter Jessica Gresko contributed to this report.
