BY LORI KERSEY | The 4th U.S. Circuit Court of Appeals has struck down West Virginia’s ban on transgender athletes, finding the law violates trans students’ rights under the Equal Protection Clause of the constitution and Title IX, a federal civil rights law prohibiting discrimination based on sex in education programs.

The case, B.P.J. vs. the West Virginia Board of Education, was filed in May 2021 on behalf of Becky Pepper-Jackson, a 13-year-old trans middle school student and track athlete who would be barred from participating if the ban is upheld. Pepper-Jackson is represented by the American Civil Liberties Union, the American Civil Liberties Union of West Virginia and Lambda Legal.

In April 2021, West Virginia Gov. Jim Justice signed into law a bill prohibiting trans women and girls in the state from participating in sports that align with their gender identity. The U.S. Court of Appeals in February 2023 blocked the state from removing Pepper-Jackson from her school’s track and field team as legal advocates appealed a lower court’s ruling upholding the ban. 

In Tuesday’s ruling, Judge Toby Heytens wrote that offering Pepper-Jackson the “choice” between not participating in sports and participating only on boys teams is not a real choice.

“The defendants cannot expect that B.P.J. will countermand her social transition, her medical treatment, and all the work she has done with her schools, teachers and coaches for nearly half her life by introducing herself to teammates, coaches and even opponents as a boy,” the judge wrote. 

“By participating on boys teams, B.P.J. would be sharing the field with boys who are larger, stronger, and faster than her because of the elevated levels of circulating testosterone she lacks,” he wrote. “The Act thus exposes B.P.J. to the very harms Title IX is meant to prevent by effectively ‘exclud[ing]’ her from ‘participation in’ all non-coed sports entirely.”

In a statement Tuesday, Joshua Block, senior staff attorney for the ACLU’s LGBTQ and HIV Project, called the court’s ruling “a tremendous victory for our client, transgender West Virginians and the freedom of all youth to play as who they are.”

“It also continues a string of federal courts ruling against bans on the participation of transgender athletes and in favor of their equal participation as the gender they know themselves to be,” Block wrote. “This case is fundamentally about the equality of transgender youth in our schools and our communities and we’re thankful the 4th Circuit agreed.” 

“We hope today’s ruling sends a message of hope to the trans youth of West Virginia,” Aubrey Sparks, legal director of the ACLU of West Virginia, said in the statement. “And a message of warning to politicians who continue to dehumanize this vulnerable population.”

West Virginia is one of 21 states that have banned trans student-athletes over the last three years, according to the ACLU. 

In a statement Tuesday, West Virginia Attorney General Patrick Morrisey vowed to defend the ban and said he is “deeply disappointed” in the decision. 

“The Save Women’s Sports Act is ‘constitutionally permissible’ and the law complies with Title IX,” Morrisey said. “I will keep fighting to safeguard Title IX. We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field. We know the law is correct and will use every available tool to defend it.”

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Lori Kersey is a reporter with a decade of experience reporting in West Virginia. She covers state government for West Virginia Watch.

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The preceding article was previously published by the West Virginia Watch and is republished with permission.

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The U.S. Supreme Court on Thursday rejected West Virginia’s emergency appeal of an appellate court’s decision to block the state from enforcing an anti-transgender youth sports ban against a 12-year-old transgender girl.

Justices Clarence Thomas and Samuel Alito said they would have granted the application, but they were not joined by any of their four other conservative colleagues on the bench.

West Virginia’s lawyers were defending a 2021 statute, the Save Women’s Sports Act, that classifies student athletes based on their sex assigned at birth instead of how they identify, and they wanted to enforce the law pending the outcome of litigation challenging it.

Los Angeles Times Supreme Court reporter David G. Savage wrote, “While the court’s action sets no precedent, it sends a signal that the justices are not ready to quickly approve laws that discriminate against transgender people.”

Thursday’s decision marks the first time the Supreme Court has weighed in on matters involving transgender youth sports. West Virginia’s Republican Attorney General Patrick Morrisey pledged to keep defending the underlying statute.

“This is a procedural setback, but we remain confident that when this case is ultimately determined on the merits, we will prevail,” he said in a statement.

Enforcing the ban against the 12-year-old girl would have prevented her from participating in the girls’ cross-country and track teams at her middle school in Bridgeport, W.Va.

A federal judge ruled in 2021 that “not one child has been or is likely to be harmed” by her participation in those sports leagues, issuing a preliminary injunction to halt enforcement of the Save Women’s Sports Act.

He subsequently reversed course, finding the statute to be lawful, along with its enforcement against the 12-year-old student athlete.

Then, the ACLU appealed on her behalf and last month, the 4th U.S. Circuit Court of Appeals again blocked West Virginia from enforcing the law.

Also in March, a proposed federal ban on trans students’ participation in school sports teams consistent with their gender identities was marked up by the U.S. House Education and the Workforce Committee.

A U.S. District Court judge ruled Tuesday that West Virginia’s Medicaid program could no longer discriminate by excluding coverage for gender-confirming surgical care for transgender West Virginia Medicaid participants. 

U.S. District Court Judge Robert C. Chambers also certified the lawsuit as a class action, covering all transgender West Virginians who participate in Medicaid.  In the lawsuit brought in November of 2020 by Lambda Legal, Nichols Kaster, and The Employment Law Center, the plantiffs challenged the state’s ban on gender-confirming care in West Virginia’s Medicaid and state employee health plans.

“We applaud Judge Chamber’s decision to remove the discriminatory barrier to accessing medically necessary, gender-confirming surgical care for all transgender West Virginia Medicaid participants. Protecting and advancing health care for transgender people is vital, sound, and just. Transgender West Virginia Medicaid participants deserve to have equal access to the same coverage for medically necessary healthcare that cisgender Medicaid participants receive as a matter of course,” said Avatara Smith-Carrington, Staff Attorney at Lambda Legal. 

Fain v. Crouch is a class action litigation challenging blanket exclusions of coverage for gender-confirming care in West Virginia’s state health plans. The blanket exclusions of coverage for care are stated expressly in the health plans offered to Medicaid participants and to state employees. West Virginia’s state health plans serve approximately 564,000 Medicaid participants and15,000 state employees.

“I am excited to finally have access to the healthcare I deserve. The exclusion negatively affects my health and wellbeing as well as the health and wellbeing of other transgender Medicaid participants in our community. Gender-confirming care is healthcare, and it is lifesaving,” said plaintiff Shauntae Anderson, West Virginia Medicaid participant.  

“This is a victory not only for me but for other transgender Medicaid participants across West Virginia. This decision is validating, confirming that after years of fighting to prove that gender-confirming care is medically necessary, we should have access to the same services that West Virginia Medicaid already provides to cisgender participants. Transgender West Virginians should never feel as if our lives are worth less than others,” said plaintiff Christopher Fain, West Virginia Medicaid participant.