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Morrisey: SCOTUS ruling on gender-affirming care good sign for transgender sports ban appeal

Gov. Patrick Morrisey holds up a signed copy of Senate Bill 456, the Riley Gaines Act, which defines “male” and “female” in state code and protects single-sex spaces. The bill was signed in a March ceremony. (File Photo)

CHARLESTON — A U.S. Supreme Court decision Wednesday that has implications for medication gender affirming care across the nation could be a sign that the justices could back West Virginia’s ban on transgender participation in high school and college sports according to Gov. Patrick Morrisey.

In a 6-3 decision Wednesday morning, the U.S. 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.

The majority opinion, delivered by Chief Justice John Roberts, affirmed the Sixth Circuit Court of Appeals’ decision, holding that 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 because it does not classify based on sex or transgender status.

Instead, the Supreme Court majority determined that the Tennessee law is based on age and medical use, finding that the law met the state’s objective of protecting minors’ health. SB 1 bans the administration of puberty blockers and hormones to minors for the purpose of gender transition or treating the symptoms of diagnosed gender dysphoria. However, the law allows for the administration of puberty blockers or hormones to minors for other diagnoses.

“On its face, SB 1 incorporates two classifications: one based on age (allowing certain medical treatments for adults but not minors) and another based on medical use (permitting puberty blockers and hormones for minors to treat certain conditions but not to treat gender dysphoria, gender identity disorder, or gender incongruence),” Roberts wrote. “”Neither of the above classifications turns on sex. Rather, SB 1 prohibits healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor’s sex.”

Associate Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented from the majority opinion, arguing that the Tennessee law did discriminate based on sex.

“Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny,” Sotomayor wrote. “By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims”

The West Virginia Legislature passed in April, and Morrisey signed last month, 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.

As Attorney General, Morrisey filed a petition with the U.S. Supreme Court last summer after a panel of the U.S. Fourth Circuit Court of Appeals blocked enforcement of House Bill 3293, relating to single-sex participation in interscholastic athletic events.

“As the former West Virginia Attorney General who spent years defending women’s sports and protecting women’s safe spaces, I’m very grateful for today’s win at the U.S. Supreme Court,” Morrisey said on the governor’s official X account. “With today’s victory, I am optimistic that West Virginia will soon be able to enforce our common sense law that prevents boys from competing in girls’ sports. More work remains to remove the injunction, but today represents a big step forward.”

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 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.

“I was proud to support Tennessee’s efforts at the U.S. Supreme Court and am hopeful that this victory will pave the way for West Virginia to prevail in other cases I brought to the high court for review,” Morrisey said on his personal X account Wednesday afternoon. “I’m optimistic we will have an opportunity to overturn the injunction blocking implementation of our protecting women’s sports law soon!”

Morrisey also signed Senate Bill 456 in March – the Riley Gaines Act – which defines “male” and “female” in State Code and protects single-sex spaces. The bill is named for Riley Gaines, who first made headlines in 2022 after competing against Lia Thomas, a transgender woman who was on the University of Pennsylvania’s swim team.

While Attorney General, Morrisey also filed an appeal last year with the U.S. Supreme Court of Appeals for the 4th Circuit decision in favor of an in-state individual seeking state-funded gender reassignment surgery.

In an 8-6 decision, the 4th Circuit ruled in favor of West Virginia resident Shauntae Anderson and a defendant in North Carolina, where state laws and regulations were blocking the defendants from access to gender reassignment surgeries. Anderson was challenging the former state Department of Health and Human Resources and a 2004 law that bans the state’s Medicaid program from using taxpayer dollars from paying for gender-affirming surgeries.

That appeal is now being handled by new Attorney General J.B. McCuskey. The Attorney General’s Office also praised Wednesday’s Supreme Court decision in a social media post.

“A victory for common sense that we were proud to support,” the office stated. “We’re analyzing how this decision affects our pending petitions on school sports and Medicaid.”

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

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