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West Virginia AG urges U.S. Supreme Court to take up transgender sports case

The West Virginia Attorney General’s Office and 26 other states urged the U.S. Supreme Court to take up the state’s appeal of a lower court order blocking enforcement of a law meant to keep transgender student-athletes out of high school and college sports meant for biological girls and women. (Photo by Steven Allen Adams)

CHARLESTON — West Virginia Attorney General J.B. McCuskey is urging the nation’s highest court to take up the state’s appeal of a lower court ruling blocking enforcement of West Virginia’s ban on transgender girls and women participating in sports meant for biological girls and women.

The Attorney General’s Office submitted a supplemental filing to the U.S. Supreme Court Tuesday in the state’s appeal of a Fourth Circuit Court of Appeals in State of West Virginia v. B.P.J., where the appeals court blocked enforcement of House Bill 3293 — now called the Save Women’s Sports Act — relating to single-sex participation in interscholastic athletic events.

The supplemental filing comes in the wake of a U.S. Supreme Court ruling last week affirming another state’s ban on gender affirming care for minors. In a 6-3 decision, the Supreme Court ruled in United States v. Skrmetti that Tennessee’s law banning certain medical gender affirming care for minors was valid and could remain in effect.

In a statement Tuesday morning, McCuskey argued that the Save Women’s Sports Act complies with federal Title IX, which prohibits discrimination based on sex within education programs and activities.

“We have always been confident in the merits of our case and defense of the Save Women’s Sports Act, which protects safety and fairness in women’s and girls’ sports,” McCuskey said. “The law is constitutional and complies with Title IX. While Skrmetti is a landmark decision, our specific question remains; that is why we are urging the Supreme Court, through our supplemental filing, to take our case and allow the women and girls of West Virginia to begin enjoying the protections of the Save Women’s Sports Act.”

A majority of Supreme Court ruled that Tennessee’s Senate Bill 1 — creating a prohibition for medical procedures performed on minors related to sexual identity — is not subject to heightened scrutiny under the Equal Protection Clause of the U.S. Constitution because it does not classify based on sex or transgender status.

The West Virginia Legislature passed a similar law — Senate Bill 299 — modifying state regulations on pubertal modulation, hormonal therapy, and gender reassignment. SB 299 eliminates narrow exceptions for the use of medication gender-affirming care for minors.

The Save Women’s Sports Act, 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 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. 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 that decision, preventing HB 3293 from being enforced. While the Supreme Court has not taken up West Virginia’s latest appeal, it could be one of several test cases — including at least one case out of Maine — that could be taken up by the nation’s highest court and determine the issue of transgender girls and women participating in sports meant for biological girls and women.

This supplemental brief, submitted Tuesday by West Virginia and 26 other states, urged the Fourth Circuit’s decision blocking enforcement of the Save Women’s Sports Act is flawed and creates significant legal and social dilemmas.

The brief also said the recent Supreme Court decision in United States v. Skrmetti, did not resolve the core legal questions at issue, including a recent executive order from President Donald Trump prohibiting transgender student-athletes from participating in sports meant for biological girls and women.

“That declaration leaves public schools in the Fourth Circuit (and the Ninth, too) between a rock and a hard place,” according to the brief. “Should they follow an executive order that threatens all their funding — even funding unrelated to athletics? Or should they follow a court order that has not yet been applied to them? The years of delay that would follow were the Court to grant, vacate, and remand here would not help, especially when Skrmetti did not purport to address the legal questions that drive this case.”

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