The U.S. Supreme Court on October 9, 2024. (Photo by Jane Norman/States Newsroom)
Nearly five years after West Virginia’s ban on transgender athletes took effect, the U.S. Supreme Court on Tuesday will hear arguments in a case to decide its future. Becky Pepper-Jackson, a now 15-year-old high school student from Bridgeport, West Virginia, tries to fall West Virginia’s Save Women’s Sports Act, which former governor Jim Justice come into force in 2021.
The law bans transgender athletes from participating on girls’ and women’s sports teams at public schools and colleges. It does not ban transgender men from participating on boys’ or men’s teams.
Supreme Court justices are expected to decide whether West Virginia’s law violates Title IV, which mandates a ban Gender discrimination in educational programs and activities receiving federal financial support, and the Equal Protection Clause of the 14th Amendment, which prohibits it States may not deny equal protection of the law to anyone within their jurisdiction.
In a press release, West Virginia Attorney General JB McCuskey said called the case “monumental” not just for West Virginia, but for the entire country. The outcome of the case will impact the future of women’s sports, the promises of Title IX and the safety of our daughters, he said in the release.
“We hope the Supreme Court upholds the Save Women’s Sports Act and agrees with what West Virginia has been saying for years: Biological sex matters in sports, and allowing men to compete against female athletes is unfair and dangerous,” McCuskey said in the release.
Billy Wolfe, a spokesman for the American Civil Liberties Union of West Virginia, which is representing Pepper-Jackson in the case, said the state’s ban on transgender athletes is part of a broader national effort to target transgender people and utilize them as a political cudgel.
“Becky Pepper-Jackson obviously poses no threat to women in sports in West Virginia,” Wolfe said. “We are a state of 1.8 million people, and in this state there is one trans girl who wants to play sports with her friends. She is in no way a threat to the existence of women’s sports. Unfortunately, all of this stuff is about politics.”
Speaking to reporters Thursday afternoon, McCuskey said it was “somewhat disingenuous” to suggest that the state’s ban on transgender athletes only affected Pepper-Jackson.
“It’s definitely not about one person,” McCuskey said. “It’s about the entirety of athletics in West Virginia.”
“We want to make sure that the playing fields are demarcated according to their biological gender,” he said.
Along with Pepper-Jackson’s challenge, the Supreme Court ruled Tuesday will hear it too arguments in Little v. Hexoxwhich is challenging Idaho’s ban on transgender athletes.
Dale Melchert, senior attorney at the Transgender Law Center, said the two cases are narrow and specific to the students who filed the challenges, but Supreme Court decisions could have far-reaching implications.
“Ultimately, it really comes down to whether or not all students can receive the same educational benefits.” Melchert said. “ASport is an essential part of community life and educational life. They are a place where teenage people learn how to work in a team, build self-confidence, learn leadership skills or just play and have fun. But bans like those in West Virginia and Idaho are blanket bans that make it impossible to play regardless of an individual trans girl’s unique characteristics.”
In July 2021, the U.S. District Court for the Southern District of West Virginia issued one an injunction allowing Pepper-Jackson to continue competing on the girls’ cross country and track teams while the case progresses. In 2023, the court ruled that the law was constitutional, lifted the injunction, and granted summary judgment for the state of West Virginia.
In 2023, the Fourth District Court of Appeals granted Pepper-Jackson’s request to continue playing while the case was appealed. In April 2024, The same court ruled in favor of Pepper-Jackson, overturning the Southern District’s decision. In the latter decision, the court ruled that the law violated the rights of transgender students under Title IX, a federal civil rights law that prohibits discrimination based on sex in educational programs.
Wolfe said by the ACLU’s count, Becky Pepper Jackson’s case is only the third case in recent history to originate in West Virginia and be heard by the U.S. Supreme Court. In Barnett v. West Virginia Board of Education During World War II, the ACLU of West Virginia represented two Jehovah’s Witness students who successfully opposed school requirements to recite the Pledge of Allegiance, which violated their religion. In 2022 the The Supreme Court ruled in favor of West Virginia and other Republican-led states that sought to limit the federal Environmental Protection Agency’s ability to limit carbon emissions.
The ACLU of West Virginia is charter a bus to Washington, D.C. so that Pepper-Jackson supporters could attend a rally outside the U.S. Supreme Court while the case is being heard. The bus will pick up passengers in Charleston, Martinsburg and Morgantown.
Wolfe said the bus rides and rally could be a community-building exercise for people against laws designed to make marginalized people feel all alone and have a target on their back.
“I think that these events tend to bring people together and remind them that they are not alone, that there are people who are fighting this fight with them,” Wolfe said. “And so I think it creates a very positive atmosphere. Even though we know that what we’re fighting for is very serious. They’re very harmful things that we’re fighting against.”
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