The United States Supreme Court on Thursday allowed a 12-year-old transgender girl in West Virginia to continue competing on her high school’s girls’ sports teams as a state ban lawsuit continues.
A majority of the judges refused to overturn an appeals court order that allowed the girl, Becky Pepper-Jackson, to continue playing on her school’s track and field and cross-country teams, where she regularly finishes in the back of the pack.
Justices Samuel Alito and Clarence Thomas disagreed, indicating that they would have allowed West Virginia to enforce the law against Pepper-Jackson.
Pepper-Jackson is in the middle of outdoor track season. She had filed a lawsuit against the law, the Save Women’s Sports Act, which West Virginia lawmakers passed in 2021.
According to Movement Advancement Project, a pro-LGBTQ think tank, West Virginia is one of 20 states that ban transgender athletes from participating in sports that are consistent with their gender identity.
A federal appeals court had allowed her to participate while she appealed a lower court ruling upholding West Virginia law.
Two weeks ago, World Athletics, an international governing body for athletics, also banned transgender athletes from its competitions.
West Virginia Governor Jim Justice, a Republican, recently signed into law a bill banning gender-affirming care for minors as part of an effort in Republican-led states across the country to curb LGBTQ+ rights this year.
West Virginia’s school sports law prohibits transgender athletes from female teams. Signed by law enforcement, the law defines male and female by looking at the student’s “reproductive biology and genetics at birth.” It applies to middle and high schools, as well as colleges.
By law, male athletes can play on male or mixed teams, and female athletes can play on all teams.
Tennis great Martina Navratilova was one of dozens of female athletes to support West Virginia on the Supreme Court, along with Republican attorneys general in 21 states.
U.S. District Court Judge Joseph Goodwin initially barred West Virginia from enforcing the law and allowed Pepper-Jackson to compete on the girls’ teams while the case continued.
But Goodwin eventually found that the law does not violate the Constitution or Title IX, the landmark 1972 gender equality legislation. Goodwin, an appointee of former President Bill Clinton, ruled that the law could remain in effect as long as the appeals process continued.
Lawyers for the girl, known in the lawsuit by the initials BPJ, appealed. A three-judge panel of the Fourth U.S. Circuit Court of Appeals voted 2 to 1, without issuing any opinion, to put the law on hold while it considers the case.
The two appeals court judges who voted to put the law on hold were Pamela A Harris, an appointee of former President Barack Obama, and Toby J Heytens, an appointee of current President Joe Biden. Judge G. Steven Agee, an appointee of former President George W. Bush, disagreed.
The Supreme Court gave no justification for its action on Thursday.
In his dissenting opinion on Thursday, Alito wrote, “I would grant the state’s application. Among other things, the enforcement of the law in question should not be prohibited without explanation by the federal courts.” Thomas joined the disagreements.
When asking the Supreme Court to allow the law to take effect as the case unfolds, West Virginia told the judges that: “This case implies a question full of emotions and different perspectives. That’s all the more reason to defer pending appeals to state lawmakers.
But state attorneys indicated they expected a positive outcome from their trial: “The decision was up to the West Virginia legislature. The end of this process will confirm that it is valid.”
Pepper-Jackson is identified by her initials in court documents due to federal rules prohibiting identifying minors. But Pepper-Jackson and her mother have repeatedly spoken out on the issue.