A Supreme Court Decision Obscuring a State Sports Law “Enforcing Equal Protection of the Fourth Amendment and the Rights of Transgenders”

The state defended its ban on transgender participation in sports, contending that “biological differences between males and females matter in sports.” Separating teams by sex assigned at birth violates neither the Fourteenth Amendment guarantee to equal protection of the law nor federal anti-discrimination law, the state said.

Her lawyers stated that she should not be allowed to have the Supreme Court use its emergency docket to give a “preview” of its views, since no appeals court has yet addressed this issue.

While the court’s conservative supermajority has come under considerable criticism for its aggressive use of the emergency docket to deal with controversial issues without full briefing and oral argument, this time the court stayed its hand.

“Among other things, enforcement of the law at issue should not be forbidden by the federal courts without any explanation,” Justice Alito wrote in his dissent, adding: In “the circumstances present here—where a divided panel of a lower court has enjoined a duly enacted state law on an importantsubject without a word of explanation, notwithstanding that the District Court granted summary judgment to theState based on a fact-intensive record—the State is entitled to relief.”

Nineteen states have passed laws like West Virginia’s in the last three years. But no appeals court has yet ruled on the question.

A girl who has lived as a girl since fourth grade is challenging West Virginia’s law, according to court papers. Briefs in her case say she is now receiving “puberty-delaying treatment and estrogen hormone therapy,” so she “has not experienced and will not experience endogenous puberty.” That means she will not experience any of the physiological characteristics of puberty experienced by typical boys, and will instead develop “physiological characteristics consistent with hormonal puberty of typical girls.”

Comment on ‘The Case for a Transgender Player in a Sports Team’ by J.P. Pepper-Jackson

She has been on the track and field teams for four sports seasons and according to her lawyers, she has been “harming no one.” Indeed, her lawyers say she was “welcomed by teammates and coaches” and “has not had any problems with children on other schools’ teams.”

“While some females may be able to outperform some males, it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes,” he wrote. “This is not an overbroad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes.”

The American Civil Liberties Union is delighted that the Supreme Court today acknowledged that there was no emergency in the situation and that Becky should be allowed to keep playing on the track team.

“For as long as schools have offered sports teams, it has been the ‘norm’ to designate student athletes to them by sex,” the state said. Without separation of the sexes in sports, “there is a substantial risk that boys would dominate the girls programs and deny them an equal opportunity to compete in interscholastic events.”

Among the LGBTQ advocacy groups that expressed skepticism of the announcement was Lambda Legal, which said it was “concerned about whether the proposed rule can properly eliminate the discrimination that transgender students experience due to the pervasive bias and ignorance about who they are.”

“In short, the Application does not come close to the type of urgent and compelling circumstances required for extraordinary relief from this Court,” they wrote. “There is no basis for this Court to order B.P.J. off the playing field where she has been for her entire middle school career to date and where her presence harms no one.”

Though the law has remained on the books since 2021, lawyers for Pepper-Jackson said in recent court filings that the state is “not aware of any transgender student seeking to play school sports in West Virginia other than” her.

“This case implicates a question fraught with emotions and differing perspectives. The court should defer to the state lawmakers pending the appeal, the attorneys told the court. “The decision was the West Virginia Legislature’s to make. This lawsuit will confirm that it was a valid one.

The court is likely to be required to address this important issue in the near future if either Title IX of the Education Amendments or the Fourteenth Amendment forbid a State from prohibiting participation in womens or girls.

It is possible that the court stayed out of this dispute because of procedural issues with West Virginia’s behavior, according to CNN Supreme Court analyst Steve Vladeck.

Morrisey and his team of attorneys for the Alliance Defending Freedom wrote to the court to allow the act to continue protecting West Virginia student athletes this spring and beyond.

The attorneys for Pepper-Jackson argued that the state has no case to answer, since the preliminary injunction against the law has not yet taken effect.

State Reply to the Comments on Title IX Sports Bans and Their Implications for Transgender Students in the 21st Century

Several friend-of-the- court briefs were filed to the Supreme Court in support of West Virginia, with one of them signed by a number of famous athletes, including the tennis player and Olympic champion Donna de Varona.

The Title IX changes will open for 30 days of public comment after they are published in the Federal Register. Those are just the first steps in a long process to alter the law. Assuming the proposal survives that process, schools and students will not see the rule changed or enacted for months if not years.

The rule change comes as GOP-led states across the country continue to push a variety of anti-trans measures, including bills intended to keep transgender students from playing on sports teams consistent with their gender identity. Biden has consistently spoken out against such efforts, but Thursday’s announcement represents the most significant action yet that his administration has taken to combat them.

“Given the importance of the opportunity to participate in athletics to students’ educational experience, we look forward to submitting comments and working with the administration to further remove those remaining bigotry-based barriers to full and equal participation by transgender youth,” said Sasha Buchert, the group’s senior attorney in a statement.

A slew of states have put anti-trans sports bans on their books in recent years, including Kansas, where state lawmakers enacted a ban on Wednesday by overriding a veto from their Democratic governor. In 2022 alone, eight states enacted similar sports bans.

Conservatives have argued that trans girls and women are more likely to win in sports than their cis counterparts while no research has been found to support the claim.