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West Virginia

Supreme Court rejects W.Va.’s appeal to prevent trans girl from participating in sports

Case involves 12-year-old student

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U.S. Supreme Court (Washington Blade photo by Michael Key)

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.

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West Virginia

Appeals court strikes down W.Va. transgender athlete ban

Ruling finds law violates students’ constitutional rights, Title IX

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The 4th U.S. Circuit Court of Appeals on April 16, 2024, blocked West Virginia’s ban on transgender athletes, finding the law violates trans students’ rights under the Equal Protection Clause of the constitution. The ban was challenged by Becky Pepper-Jackson (pictured) a 13-year-old trans student athlete from West Virginia. (Photo courtesy of Billy Wolfe/ACLU)

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

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.

Nonprofit, nonpartisan, independent journalism not hidden behind a paywall. Mountaineers are always free, and so is West Virginia Watch.

West Virginia Watch is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.

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West Virginia

Settlement reached on birth certificate gender markers, names in W.Va.

Lawsuit filed in August 2021

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(Washington Blade photo by Michael Key)

The West Virginia Department of Health and Human Resources’ Vital Registration Office has introduced more accessible and safer policies for transgender people seeking to amend their birth certificates.

This action implemented as a result of a settlement in a lawsuit brought by American Civil Liberties Union, ACLU of West Virginia and the Harvard Law School LGBTQ+ Advocacy Clinic.

“This is a major victory for the thousands of transgender West Virginians who will now be able to obtain accurate birth certificates to help them navigate their lives more safely,” said ACLU of West Virginia Executive Director Joseph Cohen. “But we know our work is not yet finished. Nonbinary West Virginians are still unable to obtain a birth certificate that accurately reflects their gender. Since April of this year, U.S. citizens have been able to select an X gender marker on passport applications. We will continue to work with our partners to update West Virginia’s policies so that all West Virginians can have the accurate identity documents they need.”

Access to accurate identity documents remains a critical issue for all people but especially trans people. For years, the West Virginia Vital Registration Office required trans applicants seeking to amend the gender marker on their West Virginia birth certificate to produce a circuit court order directing the amendment.

In 2020, the West Virginia Supreme Court of Appeals stripped West Virginia circuit courts of the authority to order such amendments. Despite this ruling, the West Virginia Vital Registration office continued its policy of requiring transr applicants to produce a court order to amend the gender marker on their birth certificate, effectively barring gender marker amendments for trans people.

Further, trans applicants who previously successfully amended their gender marker and/or name on their birth certificate, still faced having to carry a birth certificate that left their deadname and incorrect gender marker clearly legible on the face of the newly amended birth certificate, due to the Vital Registration Office’s amendment method.

The ACLU, the ACLU of West Virginia and the Harvard Law School LGBTQ+ Advocacy Clinic in August 2021 sued over both policies. The lawsuit demanded that the agency develop policies by which trans people with West Virginia birth certificates could both obtain a gender marker amendment and do so in a method that does not disclose their transgender status on the face of the amended birth certificate.

West Virginia’s Department of Health and Human Resources this past spring announced new birth certificate amendment policies. First, applicants, including trans applicants, who are seeking to amend the gender marker on their West Virginia birth certificate no longer need a court order. They need only provide a simple provider attestation form available from the West Virginia Vital Registration Office’s website.

Further, the new policies amend birth certificates in a manner that reduces the risk of outing trans individuals who have had name and/or gender marker amendments by removing the previous information from the face of the newly amended birth certificate. These important policy implementations make birth certificate amendments more accessible and safer for trans applicants.

“This is an incredible policy change not only for our clients but all transgender people with West Virginia birth certificates who require amendments,” said Taylor Brown, lead counsel and staff attorney with the ACLU LGBTQ and HIV Project. “West Virginia’s new policies restore a greater degree of autonomy and self-determination for transgender people in West Virginia. In today’s climate, it is more important than ever for the government to leave personal decisions of these kinds where they belong, between an individual and their provider. Not a court, legislators, or administrative bodies. This is an important win for those reasons alone.”

“This is a tremendous victory for the transgender people of West Virginia, who will now be able to update this crucial identity document without having to pursue an unnecessary, long and expensive process to obtain a court order,” said Malita Picasso, a staff attorney with the ACLU LGBTQ and HIV Project. “Now, transgender West Virginians will not be forced to disclose their transgender status every time they present a birth certificate with a gender marker that does not match their gender identity.”

“Birth certificates and other identity documents are essential to navigate daily life,” said Alexander Chen, founding director of the Harvard Law School LGBTQ+ Advocacy Clinic. “Like driver’s licenses, birth certificates are commonly used to verify a person’s identity. That transgender West Virginians can now obtain birth certificates matching their true selves is an important part of making our country more reflective of our core constitutional values, including recognizing the fundamental dignity and right to privacy of every person.”

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National

Judge: West Virginia Medicaid must cover transgender care

Fain v. Crouch is litigation challenging blanket exclusions of coverage for gender-confirming care in West Virginia’s state health plans

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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. 

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