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ACLU Will Ask Supreme Court to Block State Law Banning Men From Women’s Sports

The Supreme Court has given counsel for a transgender middle school student until March 20 to respond to West Virginia’s emergency application to lift a federal appeals court order blocking the state’s Save Women’s Sports Act from taking effect.

The legal action comes as West Virginia and other states have been taking action to make sure women and girls continue to have access to school sports even as males who identify as females are taking women’s spots on women’s sports teams. Idaho, Mississippi, Montana, Arkansas, and Florida have also passed legislation that keeps males from competing in women’s sports.

West Virginia enacted the Save Women’s Sports Act in 2021, which prevents individuals from competing in school sports other than under their birth sex. The U.S. Court of Appeals for the 4th Circuit issued an injunction putting the state law on hold while a lawsuit brought by the American Civil Liberties Union (ACLU) on behalf of Becky Pepper-Jackson, a 12-year-old who was born male but now identifies as female, remains pending. Pepper-Jackson was prevented from joining a girls’ cross-country team.

The ACLU says the statute violates the child’s rights under the Equal Protection Clause in the 14th Amendment to Constitution and Title IX, a federal law that bans sex-based discrimination in education.

The emergency application in State of West Virginia v. B.P.J., court file 22A800, was docketed by the high court on March 13. The application, prepared by West Virginia Attorney General Patrick Morrisey, a Republican, was referred to Chief Justice John Roberts who oversees the 4th Circuit.

Apart from West Virginia, the other applicants are the West Virginia State Board of Education, the West Virginia Secondary School Activities Commission, and W. Clayton Burch in his official capacity as West Virginia State Superintendent of Schools, as well as former collegiate soccer player Lainey Armistead.

Represented by the conservative Alliance Defending Freedom (ADF), Armistead previously said the courts should respect the West Virginia law, which ADF says is “a commonsense law that protects equal opportunity, fairness, and safety for women.”

Roberts ordered counsel for the pre-teen, who is identified in the legal action as B.P.J., to reply to the application not later than March 20 at 12 noon.

Lambda Legal, a pro-LGBT organization, and the ACLU issued a joint statement saying, “We will vigorously defend Becky’s right to participate in team sports, and would urge state legislators countrywide to just let the kids play.”

“Becky is a 12-year-old girl who has tried out and been accepted as a member of the girls track team, with no issue from her teammates. She has been receiving puberty-delaying medication and gender-affirming hormones. It is unconscionable that the West Virginia Attorney General wants to prevent Becky from participating in sports with her peers,” the press release states.

Nearly 200 collegiate and professional women athletes—including Billie Jean King, Megan Rapinoe, and Candace Parker—have joined in friend-of-the-court briefs supporting trans youth participation in sports, the document states.

“West Virginia refuses to address the facts of Becky’s case and instead talks about elite athletic competitions that have nothing to do with the facts here. The AG and his allies have cherry-picked unique incidents and ignored the overwhelming evidence that allowing transgender youth to participate in team sports has benefits for all,” the statement concludes.

Morrisey said last week that he is defending his state’s law, which demands that girls and women get their fair share of opportunities in sports.”

“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.”

The Supreme Court has ruled in some civil rights cases affecting transgender people.

In 2020, it held in Bostock v. Clayton County, that a federal civil rights law prevents employees from being fired from their jobs because of sexual orientation or gender identity.

But the next year it declined to get involved in the case of Gavin Grimm. The then-Virginia high school student who was born female successfully sued the local school board for the right to use the male bathroom. The Supreme Court refused to take up the case, over the objections of two conservative justices who voted to grant oral arguments.

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