West Virginia Asks High Court to Weigh in on Trans Athlete Case

West Virginia says it’s asking the US Supreme Court to lift a freeze on the state’s law barring transgender athletes from participating on girls’ school sports teams while a federal appeals court considers the case.

The state is challenging a Feb. 22 ruling by a divided panel of the US Court of Appeals for the Fourth Circuit staying a Jan. 5 district court decision to dissolve an injunction after finding the law constitutional.

No federal appeals court has ruled on the constitutionality of a state’s transgender athlete ban. The Eleventh Circuit, however, ruled Dec. 30 in a divided opinion that Florida separating school bathrooms based on “biological sex” is constitutional and doesn’t violate Title IX.

“In a terse, clerk-entered order, a divided panel of the Fourth Circuit undid the district court’s careful work,” the state said in its motion to vacate the injunction filed with the high court on Thursday.

The appeals court didn’t “provide any legal or factual reasoning” for its ruling or “question the district court’s analysis or record review,” the state said. “That unreasoned order unjustifiably upsets the way that things traditionally work in school sports,” the state said.

“We will keep on fighting so female athletes can compete on a level playing field,” Attorney General Patrick Morrisey (R) said in a statement announcing the filing Thursday. “Some will claim this is simply discrimination, but nothing could be further from the truth,” he said.

The underlying lawsuit was filed by a then-11-year-old transgender girl, identified only as B.P.J., at the US District Court for West Virginia at Charleston in 2021.

Idaho, Connecticut

The law is part of an effort by conservative legislators and attorneys to challenge the right of transgender athletes to participate in girls’ and women’s sports.

In March 2020, Idaho became the first state to ban transgender athletes from competing in girls’ sports at the primary, secondary, and college levels. Boise State University athlete Lindsay Hecox sued to have the law overturned. That case is now before the Ninth Circuit.

On Dec. 16, the Second Circuit upheld the dismissal of a lawsuit seeking to ban transgender athletes from participating in girls’ sports in Connecticut. The appeals court Feb. 13 agreed to full court review of that decision.

The American Civil Liberties Union, Lambda Legal, and Cooley LLP represent B.P.J. Bailey & Wyant PLLC represents the West Virginia Board of Education and State Superintendent W. Clayton Burch. Steptoe & Johnson LLP represents Harrison County Board of Education and Harrison County Superintendent Dora Stutler. Shuman McCuskey Slicer PLLC and Miller & Amos represent the West Virginia Secondary School Activities Commission. Alliance Defending Freedom represents intervenor appellee Lainey Armistead.

The case is West Virginia v. B.P.J., U.S., docket number unavailable, filed 3/9/23.