Making a Play: Morrisey asks U.S. Supreme Court to hear transgender student-athlete ban case

Attorney General Patrick Morrisey and former West Virginia State University women’s soccer team captain Lainey Armistead announced Thursday that they filed with the U.S. Supreme Court an appeal of a three-judge decision regarding the state’s ban on transgender student athletes. (Photo by Steven Allen Adams)
CHARLESTON — After a three-judge federal appeals court panel ruled against West Virginia’s ban on transgender student-athletes participating in sports for biological males and females, Attorney General Patrick Morrisey said he will take the case to the U.S. Supreme Court. In a press conference Thursday afternoon, Morrisey announced the Attorney General’s Office filed a petition Thursday with the U.S. Supreme Court after a three-judge panel of the U.S. Fourth Circuit Court of Appeals blocked enforcement in April of House Bill 3293, relating to single-sex participation in interscholastic athletic events. The law is also known as the Save Women’s Sports Act. “Today, we have filed a petition before the U.S. Supreme Court seeking to overturn the divided Fourth Circuit Court of Appeals decision in April that enjoined the West Virginia Save Women’s Sports Act,” Morrisey said. “I can say, and I’ve said this on a number of occasions, this case is near and dear to my heart and to our office. It’s very important for the state. And rest assured, we’re going to be using all of our legal tools to defend this commonsense law. A law that’s based on biology and fairness.” HB 3293, passed by the West Virginia Legislature in 2021, requires student-athletes in middle school, high school or college to participate in sports that match the student’s sex assigned at the time of their birth. The law applies to sports regulated by the NCAA and other college interscholastic organizations. Becky Pepper-Jackson, a 13-year-old girl cross country and track athlete who has identified as a girl since third grade and takes puberty-blocking medication, filed a lawsuit against HB 3293 in May 2021 shortly after the law went into effect. Pepper-Jackson and her mother are represented by Lambda Legal, the state and national chapters of the American Civil Liberties Union, and law firm Cooley LLP, which issued a joint statement Thursday. “As the Fourth Circuit made abundantly clear, our client deserves the opportunity to participate in sports teams without discrimination,” representatives for Pepper-Jackson said. “We will make our position clear to the Court and continue to defend the right of all students to play as who they are.” The case found its way to the fourth circuit and the U.S. Supreme Court before. After a lower court allowed the law to be enforced, the fourth circuit overruled that decision, preventing the law from being enforced while the case was pending. The U.S. Supreme Court rejected an effort by Morrisey to appeal the fourth circuit decision, preventing HB 3293 from being enforced. “This is about preserving the integrity of women’s sports,” Morrisey said. “We must protect our young women, and that’s because this is a case about fair play. It’s plain common sense, and we need the Supreme Court to weigh in and do the right thing. “We believe that the Supreme Court is going to see the issue the way we do about protecting opportunities for women and girls in sports because when biological males compete and win in a women’s event, female athletes lose their opportunity to shine. And it isn’t fair,” Morrisey continued. Morrisey said there are 25 states with similar cases that could be affected by the Supreme Court taking up West Virginia’s case. Idaho Attorney General Raul Labrador filed a similar appeal to the Supreme Court Thursday. “The Supreme Court should take this case up now because more and more girls are being displaced and more and more opportunities are being taken away,” Morrisey said. “Tens of thousands of West Virginia student athletes shouldn’t have to wait for a fair shot to compete.” Morrisey was joined Thursday by Lainey Armistead, a alumna of West Virginia State University, former captain of the WVSU women’s soccer team, and a law student at Stetson University in Florida. While at WVSU, Armistead filed to intervene in the Pepper-Jackson lawsuit in favor of Morrisey. She is represented by the Alliance Defending Freedom. “There is a real human cost to the claim that men can be women,” Armistead said. “We can’t stand by and watch as the government pushes an ideology that turns back the clock on 50 years of progress for women…I’m proud to stand and ask the Supreme Court to do the right thing and protect young women.” Armistead said she never had to compete against a transgender woman in college athletics, though she had talked to other student-athletes about their experiences. “I never had to experience the indignity of competing against a biological male who I never stood a chance against,” Armistead said. “But the ACLU wants to remove that law and put young women and girls at risk in the State of West Virginia. Women and girls should know that their privacy and dignity are protected when they enter their locker rooms, restrooms, and hotel rooms. They deserve the fair playing field and respect for privacy that I experienced as a female athlete. Every girl deserves that respect.” Steven Allen Adams can be reached at sadams@newsandsentinel.com