CHARLESTON — State and local education officials and West Virginia’s regulator of sports at middle and high schools continue to deflect responsibility for a new law prohibiting transgender female student-athletes from playing in girl’s and women’s sports according to court documents.

The Harrison County Board of Education, the state Board of Education and the West Virginia Secondary School Activities Commission filed responses Friday to their earlier motions to dismiss a complaint brought in May by Becky Pepper-Jackson, an 11-year-old transgender student at Bridgeport Middle School who wished to join her middle school’s girl’s cross-country team.

U.S. District Judge Joseph Goodwin granted Pepper-Jackson a preliminary injunction in July preventing enforcement of House Bill 3293, relating to single-sex participation in interscholastic athletic events. Pepper-Jackson is represented by Lambda Legal, the state and national chapters of the American Civil Liberties Union, and law firm Cooley LLP.

HB 3293, passed during the 2021 legislative session, 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 bill applies to sports regulated by the NCAA and other college interscholastic organizations, and requires the state Board of Education, the WVSSAC, and state college regulators to create rules for the implementation of the law.

Attorneys for the Harrison County Board of Education and county Superintendent Dora Stutler argue they should be dismissed from the lawsuit. Since the suit was filed before the law went into effect and since the injunction was put into place before the school system could enforce it, they believe they have done nothing wrong.

“Here, undisputedly, no official policy of the HCBOE is at issue. Rather, Plaintiff challenges a state law,” wrote Susan Deniker, counsel for the county school system. “… The HCBOE cannot be liable to Plaintiff because it is undisputed that no HCBOE official has authority to address the alleged discrimination or to institute corrective measures. In other words, the HCBOE lacks the authority to take any remedial action.”

Attorneys for the state Board of Education and State Superintendent of Schools Clayton Burch argue that their only responsibility for HB 3293 is developing rules, but they’re not responsible for enforcement of the new law. Those rules have not been drafted or adopted by the state Board of Education as of yet, making Pepper-Jackson’s lawsuit premature.

“Quite simply, the State BOE does not enforce the statute against Plaintiff; has not enforced the statute against Plaintiff; has not exercised control over the County BOE to enforce the statute against Plaintiff; and otherwise has not engaged in any conduct that is fairly traceable to the injury complained of by Plaintiff,” wrote Kelly Morgan, counsel for the state Board of Education.

Roberta Green, counsel for the WVSSAC, made similar arguments in its reply in support of dismissing the lawsuit.

“WVSSAC did not cause enactment of the law that she claims to be the source of potential harm to her, and WVSSAC has done nothing to enforce that law against (Pepper-Jackson),” Green wrote.

“There is no potential remedy as against WVSSAC that would result in the relief Plaintiff seeks,” Green continued. “WVSSAC’s regulations are identified by Plaintiff as neutral and are not challenged by her. WVSSAC stands outside these determinations as a matter of law and fact, such that dismissal as a matter of law is the necessary and proper resolution at this time.”

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