West Virginia’s Trans Sports Ban Discriminates Against Trans Teen, Appeals Court Rules

James Factora
·3 min read
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A federal appeals court has ruled that a West Virginia law banning transgender girls from competing on girls’ sports teams violates the rights of a student who would have been kicked off of her middle school track and field team.

On Tuesday, the Fourth U.S. Circuit Court of Appeals ruled 2-1 in favor of Becky Pepper-Jackson, the 13-year-old plaintiff in a lawsuit against the West Virginia State Board of Education. The American Civil Liberties Union and Lambda Legal initially sued the state on Pepper-Jackson’s behalf in May 2021, after Governor Jim Justice signed House Bill 3293, which bans trans girls from participating on girls’ school sports teams. The lawsuit alleged that the legislation is unconstitutional, violating Title IX and the Equal Protection Clause.

Tuesday’s ruling found that the law violated Pepper-Jackson’s rights under Title IX. However, the ruling left open the question of whether it violates the Equal Protection Clause, a section of the Fourteenth Amendment often cited in civil rights rulings, and sent the case back to the district court.

In his ruling, Judge Toby Heytons wrote, “Offering B.P.J. a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all.” The ruling stresses that Pepper-Jackson came out in the third grade, takes puberty blockers and estrogen, and has been known as a girl to everyone in her life for several years. She has played solely on girls’ athletic teams since elementary school.

“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,” Heytons continued.

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

Members of the Long Island Roller Rebels in Seaford, NY.
Members of the Long Island Roller Rebels in Seaford, NY.

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The sweeping ban prevents trans girls and women from participating in any practice or competition at Nassau County facilities.

In the same statement, Lambda Legal staff attorney Sruti Swaminathan added, “West Virginia’s effort to ban one 13-year-old transgender girl from joining her teammates on the middle school cross country and track team was singling out Becky for disparate treatment because of her sex.”

“That’s discrimination pure and simple, and we applaud the court for arriving at this just decision,” Swaminathan said.

While LGBTQ+ groups are celebrating the ruling, Swaminathan stressed in an interview with Them that Tuesday's ruling only applies to Pepper-Jackson, meaning that the law technically remains in effect. A federal judge temporarily blocked West Virginia’s law in July 2021, allowing Pepper-Jackson to try out for girls’ sports teams at her middle school, but that injunction was dissolved in January 2023. This latest ruling does not overturn the legislation altogether, but will effectively allow the lawsuit against it to proceed.

According to the legislative tracking organization Movement Advancement Project, 25 states have banned trans students from participating in sports consistent with their gender identity, with many of these laws specifically targeting trans girls. However, MAP also notes that temporary injunctions are blocking those bans in Arizona, Idaho, West Virginia, and Utah.

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