‘No real choice at all’: Federal appeals court says sports ban on

A federal appeals court has ruled 2-1 that a ban in West Virginia affecting one young transgender athlete’s ability to compete on the girls track and field teams at her public school violates federal civil rights laws prohibiting sex-based discrimination.

The ruling is a boon in a long legal battle for Becky Pepper-Jackson, a 13-year-old West Virginia resident who began identifying as female five years ago, took medication to block testosterone and obtained official documentation, including a birth certificate declaring her as female. As Law&Crime previously reported, the committed young athlete became the first transgender child to receive the Supreme Court’s blessing — albeit temporarily — to compete on her West Virginia middle school’s track team when the high court’s “shadow docket” issued a 7-2 decision last April amid a fight over a West Virginia law that relegated “interscholastic athletic events” to “single sex participation” only.

U.S. Circuit Judge Toby Heytens, a Joe Biden appointee, said that the “sole purpose” of the law — known as the Save Women’s Sports Act — was to stop transgender girls from playing on girls teams. Proponents said it was necessary to stop unfair competitive athletic advantages; opponents argued it was purely discriminatory.

But for the Fourth Circuit, the question was whether that West Virginia law could be applied specifically to a transgender girl who had taken puberty-blocking medication for years and otherwise formally identified as a girl and is recognized medically as a girl. Upon review, Heytens wrote this week, the court found the law could not apply to Pepper-Jackson.

Forcing Pepper-Jackson to play on boys’ teams, or worse, forcing her to give up participating whatsoever was “no real choice at all,” Heytens wrote.

“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 her teammates, coaches and even opponents as a boy,” Heytens wrote, referring to Pepper-Jackson by her initials throughout the ruling.

“Undisputed evidence,” the judge added, showed that Pepper-Jackson, through the use of puberty-blocking medication at an early age, had never gone through the secondary stage of higher testosterone production and thus, “never felt the effects of increased levels of circulating testosterone.” This was the very factor that parties on both sides in the legal dispute acknowledged typically contributed to increased strength or speed.

The ruling distinguishes that government officials are not now suddenly forbidden from creating or continuing the operation of sex-segregated sports teams in schools or colleges or that school officials “lack the power” to enforce those rules.

This isn’t a blanket win for transgender girls everywhere, Heytens hinted in his writing, and this is so, “regardless of whether they have gone through puberty and experienced elevated levels of testosterone.”

The ruling is by and large a recognition that the West Virginia ban was discriminatory only as it applied in Pepper-Jackson’s case.

In partial dissent, U.S. Circuit Judge George Steven Agee — an appointee of former President George W. Bush — took issue with the teenager’s winning performance once she was granted permission by the Supreme Court to compete in track last year.

“Rather than finishing near the back of the pack — as B.P.J. contended would be the case in the motion for the inunction — B.P.J. consistently placed in the top fifteen participants at track-and-field events and often placed in the top 10. In so doing, over one hundred biological girls participating in these events were displaced by and denied athletic opportunities because of B.P.J. Additionally, B.P.J. earned a spot at the conference championship in both shot put and discus.”

Because participation in a conference championship demands an athlete place among the top three competitors, Agee said Pepper-Jackson deprived “two biological girls” a place in the championship.

Agee said the West Virginia law did not violate the Equal Protections Clause or Title IX protections, either.

Calling Pepper Jackson a “biological boy,” Agee wrote that in order to prove a violation of the clause occurred, the plaintiff “must identify persons materially identical to him or her who has received different treatment.”

Agee says Pepper-Jackson cannot make that showing “because it is beyond dispute that biological sex is relevant to sports and therefore that the person who is ‘in all relevant aspects alike’ to a transgender girl is a biological boy.”

An attorney arguing on behalf of Pepper-Jackson issued a statement after the ruling however, calling it a “tremendous victory” for the 13-year-old athlete, transgender West Virginians and for “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. This case is fundamentally about the equality of transgender youth in our schools and our communities and we’re thankful the Fourth Circuit agreed,” said Joshua Block, senior staff attorney for the American Civil Liberties Union LGBTQ & HIV Project.

West Virginia Attorney General Patrick Morrisey, who pushed to kick Pepper-Jackson off her school’s track and field team, did not immediately respond to a request for comment.

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