The United States Supreme Court on Thursday has allowed a 12-year-old transgender girl in West Virginia to continue competing on the girls’ sports teams at her middle school while a lawsuit over a state ban continues.
A majority of the justices refused to disturb an appeals court order that made it possible for the girl, Becky Pepper-Jackson, to continue playing on her school’s track and cross-country teams, where she regularly finishes near the back of the pack.
Justices Samuel Alito and Clarence Thomas issued a dissent, indicating they would have allowed West Virginia to enforce its law against Pepper-Jackson.
Pepper-Jackson is in the middle of the outdoor track season. She had filed a lawsuit challenging the law, the Save Women’s Sports Act, which West Virginia lawmakers adopted in 2021.
West Virginia is among 20 states that ban transgender athletes from participating in sports consistent with their gender identity, according to Movement Advancement Project, a pro-LGBTQ rights think-tank.
A federal appeals court had allowed her to compete while she appealed a lower court ruling that upheld the West Virginia law.
Two weeks ago, World Athletics, an international governing body for track and field, also banned transgender athletes from its competitions.
West Virginia Governor Jim Justice, a Republican, recently signed legislation banning gender-affirming care for minors, part of an effort in Republican-led states across the country to curb LGBTQ+ rights this year.
West Virginia’s law on school sports bars transgender athletes from female teams. Signed by Justice, the law defines male and female by looking to the student’s “reproductive biology and genetics at birth”. It applies to middle and high schools, as well as colleges.
Under the law, male athletes can play on male or co-ed teams, and female athletes can play on all teams.
Tennis great Martina Navratilova was among dozens of female athletes backing West Virginia at the Supreme Court, along with Republican attorneys general in 21 states.
US District Court Judge Joseph Goodwin initially barred West Virginia from enforcing its law and allowed Pepper-Jackson to compete on the girls’ teams while the case continued.
But Goodwin ultimately found that the law does not violate the Constitution or Title IX, the landmark 1972 gender equity legislation. Goodwin, an appointee of former President Bill Clinton, ruled the law could remain in place as appeals continued.
Lawyers for the girl, known in the lawsuit by the initials BPJ, appealed. A three-judge panel of the Fourth US Circuit Court of Appeals voted 2-1, 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, dissented.
The Supreme Court provided no justification for its action Thursday.
In his dissent on Thursday, Alito wrote, “I would grant the State’s application. Among other things, enforcement of the law at issue should not be forbidden by the federal courts without any explanation.” Thomas joined the dissent.
In asking the high court to allow the law to take effect while the case plays out, West Virginia told the justices that: “This case implicates a question fraught with emotions and differing perspectives. That is all the more reason to defer to state lawmakers pending appeal.”
But lawyers for the state indicated they expected a positive outcome for their litigation: “The decision was the West Virginia Legislature’s to make. The end of this litigation will confirm that it made a valid one.”
Pepper-Jackson is identified in court documents by her initials because of federal rules that prohibit identifying minors. But Pepper-Jackson and her mother have spoken out repeatedly about the issue.