West Virginia Attorney General Patrick Morrisey said on Thursday the state will ask the U.S. Supreme Court to allow enforcement of a law banning transgender athletes from female sports teams, one of numerous Republican-backed measures across the country targeting LGBT rights.
Morrisey, a Republican, told reporters that West Virginia will file a request asking the justices to lift an injunction blocking the law issued on Feb. 22 by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals while litigation continues over its legality. A legal challenge was brought by a 12-year-old transgender girl, Becky Pepper-Jackson.
The 2021 law, passed in 2021, bars male public high school or post-secondary students from female athletic teams “based solely on the individual’s reproductive biology and genetics at birth.”
In the lawsuit, Pepper-Jackson and her mother Heather argued that the law discriminates based on sex and transgender status in violation of the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law as well as the Title IX civil rights law that bars sex-based discrimination in education.
The state’s request to the Supreme Court, due to be filed later on Thursday, is meant “to defend the integrity of women’s sports here in West Virginia,” Morrisey said.
“This is a matter of basic common sense and basic fairness. We believe we are absolutely correct on the merits,” Morrisey added.
Pepper-Jackson, who attends a middle school in the West Virginia city of Bridgeport, sued after being prohibited from trying out for the girls’ cross-country and track teams.
“We will vigorously defend Becky’s right to participate in team sports, and would urge state legislators countrywide to just let the kids play,” the American Civil Liberties Union and Lambda Legal, an LGBT legal group, said in a statement. The groups are representing Pepper-Jackson along with the Cooley law firm.
Republicans in various states have pursued a wave of laws directed at LGBT people – limiting transgender participation in sports, access to gender-affirming medical care, and the teaching of subjects related to gender identity or sexual orientation. Tennessee lawmakers passed legislation last month restricting drag performances in public or in front of children.
The West Virginia case requires the Supreme Court to confront the issue of transgender rights – a major front in the U.S. culture wars – in the wake of its 2020 ruling that protected gay and transgender employees under a longstanding federal law barring workplace discrimination.
U.S. District Judge Joseph Goodwin initially blocked the law, allowing Becky to participate on the teams. But in January he reversed course, finding that the state measure was lawful.
“I recognize that being transgender is natural and is not a choice. But one’s sex is also natural, and it dictates physical characteristics that are relevant to athletics,” wrote Goodwin, an appointee of Democratic former President Bill Clinton.
Goodwin criticized the measure as one that aimed to “politicize” sports participation by transgender students and was “creating a ‘solution’ in search of a problem.”
The 4th Circuit subsequently blocked law while the case proceeds.
A former West Virginia State University female college soccer player, Lainey Armistead, also intervened in the case to defend the state’s law. She is represented by the Alliance Defending Freedom, a conservative religious rights group.
The Supreme Court in 2021 left in place a lower court’s ruling that a Virginia school board had acted unlawfully in preventing Gavin Grimm, a transgender former high school student, from using the boys’ bathroom before he graduated in 2017.
The justices are considering another important case during their current term touching on LGBT rights, with a ruling due by the end of June. The court’s conservative majority, based on arguments in December, appeared ready to rule that a Christian web designer has a right to refuse to provide services for same-sex marriages.