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Officials challenge lawsuit over West Virginia’s transgender student-athlete ban

CHARLESTON — The West Virginia Attorney General’s Office, the state Board of Education and a county board of education filed responses last week in a federal lawsuit challenging the state’s ban on female transgender student-athletes.

Attorneys for the state Board of Education and the Harrison County Board of Education filed separate responses in a case brought last month against the state by Lambda Legal, the state and national chapters of the American Civil Liberties Union and the law firm Cooley LLP against House Bill 3293 relating to transgender student participation in interscholastic athletic events.

The suit, filed in the U.S. District Court for the Southern District of West Virginia, was brought on behalf of an 11-year-old transgender girl who planned to try out for her middle school’s cross-country team. HB 3293 requires student-athletes in middle school, high school or college to participate in sports that match their biological sex based on the student’s sex at the time of their birth.

The Attorney General’s Office filed a defendant-intervenor on behalf of the state. In a response filed last Wednesday to the lawsuit, Deputy Attorney General Curtis Capehart made note that they filed their response on the 49th anniversary of the adoption of Title IX, which prohibits sex-based discrimination in education programs and activities.

“Plaintiff is a biological male who has the undisputed opportunity to try out for the boys’ teams at Bridgeport Middle School,” Capehart said. “Plaintiff, however, wants to try out for the girls’ cross-country and track team because Plaintiff identifies as female. Because this would cause a biological male to unfairly compete against biological females, (HB 3293) bars Plaintiff from doing so. Plaintiff’s claim that this violates the Constitution and Title IX are unavailing.”

The U.S. Department of Education announced this week that Title IX protections extend to transgender students, which prohibits sex-based discrimination. The Department of Justice also filed a brief in the case siding with Lambda Legal and the transgender student-athlete.

In his agreement against a preliminary injunction to block HB 3293, Capehart said the new law strengthens Title IX.

“To begin with, (HB 3293) furthers the goals of Title IX, as it promotes the equal opportunity for the sexes in athletics,” Capehart wrote. “Although Plaintiff argues that (HB 3293) discriminates on the basis of sex because it targets transgender female students — that is, biological males who identify as female — the law does no such thing.

“Rather, it is Plaintiff who is asking this Court to compel the State to discriminate — to define eligibility for participation in women’s sports — on the basis of gender identity,” Capehart continued. “Indeed, by defining such eligibility on the basis of biological sex, (HB 3293) takes no account of gender identity, thus hardly discriminating ‘on the basis of it.'”

Attorneys for the Board of Education and State Superintendent of Schools Clayton Burch argue that the preliminary injunction motion should be denied. They argue that the student-athlete has no standing to bring a case against the board as HB 3293 hasn’t taken effect yet and the board hasn’t begun the rule-making process yet.

HB 3293 doesn’t take effect until July 8. The bill requires the state Board of Education, the West Virginia Schools Secondary Activities Commission and the Higher Education Policy Commission/West Virginia Council for Community and Technical College Education to create rules to implement HB 3293.

Kelly Morgan, an attorney representing Burch and the state school board, argues that the state board’s only role in the law is rule-making authority, not enforcement. They also put the responsibility for the law on the Republican-controlled West Virginia Legislature.

“It is important to note that … (the) West Virginia State Board of Education and Superintendent W. Clayton Burch did not request a bill of this nature and played no role in the introduction and initial drafting of House Bill 3293,” Morgan wrote. “WVBOE in no way participated in the enactment of (HB 3293). Instead, WVBOE only answered specific questions posed to it during House of Delegates Education and Committee meetings and hearings.”

Susan Deniker, an attorney for the Harrison County Board of Education, also argued against the injunction. The board also blamed the Legislature for the law, stating that if it goes into effect next month they will be bound to enforce it.

“The Act was passed by the West Virginia Legislature and signed by (Gov. Jim Justice), and if it goes into effect, it will preclude (the transgender student-athlete) from joining the girls’ track and cross-country teams,” Deniker wrote. “The County Board has no policy or custom that would prevent B.P.J. from joining the girls’ teams due to transgender status. However, the County Board is required to follow the law, and so it is tasked with enforcing the Act when (or if) it goes into effect.”

In a filing on June 22, the West Virginia Schools Secondary Activities Commission declined to take a position on the injunction since the law only calls on their agency to come up with rules but doesn’t give the agency enforcement authority for the law.

Steven Allen Adams can be reached at sadams@newsandsentinel.com

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