A federal appeals court on Tuesday overturned a West Virginia law that prohibits male athletes from competing in women’s sports in the state, arguing that it violates Title IX, the federal law barring sex-based discrimination in schools.
In a 2-1 ruling, the 4th U.S. Circuit Court of Appeals allowed transgender-identifying males to participate on women’s sports teams in the state.
This was one of several pending lawsuits addressing the issue of male participation in women’s sports, with both sides laying claim to Title IX to support their cases. In the West Virginia case, Becky Pepper-Jackson — an eleven-year-old boy interested in trying out for his middle-school girls’ cross-country team — sued to enjoin the state law. Pepper-Jackson claimed the law violates Title IX and the equal-protection clause of the Constitution.
After the West Virginia legislature enacted the law, the district court issued an injunction against its enforcement. For 18 months, the state did not challenge the injunction. Later, the district court ruled in the state’s favor. Pepper-Jackson then appealed to the Fourth Circuit and asked for an injunction while the appeal was pending. A divided three-judge panel granted the injunction, which the Supreme Court declined to reverse in April 2023 without expressing a view on the merits of the case. The Court decided not to disturb the injunction likely because the state did not ask for urgent emergency action for over a year.
In its motion to the Supreme Court, West Virginia noted that suspensions of the law upset the way school sports traditionally function.
“For as long as schools have offered sports teams, it has been the ‘norm’ to designate student athletes to them by sex,” the state wrote. “Without that separation, there is ‘a substantial risk that boys would dominate the girls’ programs and deny them an equal opportunity to compete in interscholastic events.'”
Sex-segregated sports teams help equalize athletic programs for men and women, the state added, by making it easier to monitor opportunities such as scholarships.
West Virginia attorney general Patrick Morrisey on Tuesday vowed to keep up the fight to defend West Virginia’s Save Women’s Sports Act.
“I am deeply disappointed in the court’s divided decision today,” Morrisey said in a statement obtained by National Review. “The Save Women’s Sports Act is ‘constitutionally permissible’ and the law complies with Title IX.”
“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,” he added. “We know the law is correct and will use every available tool to defend it. We remain confident in the merits of our defense. We are resolute in protecting opportunities for women and girls in sports because when biological males win in a women’s event—as has happened time and again—female athletes lose their opportunity to shine.”
Judge G. Steven Agee dissented from Tuesday’s ruling, concluding that an earlier decision in favor of the state should have been affirmed, as the majority’s conclusion was “miles away from the straightforward text of the laws [the Court was] called to apply.”