Pepper Jackson, now in eighth grade, has identified as female for five years, almost half of her life, the court said. Since she was in elementary school, she had only played girls' sports. She has her birth certificate proving she is female. She was also taking medication to stop male puberty and bring on female puberty, which the court said was key to the sentence.
Pepper Jackson has “never felt the effects of increased circulating testosterone levels” and therefore “the fact that those who would benefit from increased strength and speed does not justify excluding them, much less substantively.” It's not a valid reason.'' [her] From the women's cross country and track and field teams,” the judges wrote. She said forcing her to play on the men's team or not playing at all “would be exposing.” [her] “The unfair competition that defendants claim to protect cisgender girls, and in some sports, exposes them to the same risks of physical danger,” the court said. , I will be sharing the field with some strong boys.” It's faster than her because she has increased levels of circulating testosterone. ”
Requiring her to do so violates federal civil rights law, the court said. It “does not believe that government officials are prohibited from creating separate sports teams for boys and girls, or that they lack the authority to police the boundaries drawn between those teams.'' “No,” the judges added. Additionally, federal law “requires schools to allow all transgender girls to play on girls' teams, regardless of whether they have gone through puberty or experienced elevated levels of circulating testosterone.” It doesn't even make sense. The newspaper said the ban was discriminatory only in the “special case” of Pepper Jackson.
Tuesday's decision was written by Judge Toby J. Hatens, a Biden appointee, and joined by Judge Pamela Harris, an Obama appointee. Justice G. Steven Agee, a George W. Bush appointee, dissented, saying, “I hope so.”[d] We hope that the Supreme Court will carefully and swiftly seize the opportunity to resolve these issues of national importance. ”
The conservative Christian group Alliance Defending Freedom, which supports the law and other laws restricting transgender rights, has indicated that an appeal may be filed. The ruling “undermines equal opportunity and contradicts both biological reality and common sense,” said lawyer Rachel Rouleau.
Despite its conservative leanings, it is unclear what the Supreme Court will do. On Monday, the high court allowed the state of Idaho to enforce its criminal ban on gender-affirming medical care for trans minors. But the court also refused last year to allow West Virginia's law to go into effect while it was being challenged in the 4th Circuit.
The Fourth Circuit, which also handles appeals from federal courts in Maryland, Virginia, North Carolina and South Carolina, was once the most conservative appellate court in the country. It is now a pioneer in the field of transgender rights. The Supreme Court upheld the ruling, becoming the first appellate court to recognize a trans student's right to use a restroom that reflects his or her gender. It was also the first organization to classify gender dysphoria, the disconnect between one's own gender and one's assigned gender, as a disability protected under federal law. The court is also considering whether state health plans must cover gender-affirming treatment.
Joshua Bullock of the ACLU, who represented Pepper Jackson, said the lawsuit is “another in a series of federal court decisions opposing bans on transgender athletes and upholding their equal participation as the gender they identify.” ”, he said. Courts from Arizona to Connecticut have sided with transgender students. Although some of those decisions are pending appeal, no appellate court has ruled against a trans athlete on the merits, he said.
A 2023 Washington Post KFF poll found that a majority of Americans support laws that protect transgender rights in schools and elsewhere, but that trans women and girls should not compete against other women and girls in sports. They believe that gender should not be allowed and that gender is determined. At birth. Republicans have exploited these rifts to support state and federal laws restricting transgender rights. While there was national outrage in 2016 when North Carolina banned transgender people from using the restroom based on their gender identity, recent bills targeting trans minors in the state have provoked little reaction. There wasn't.
Since 2020, about half of U.S. states have enacted measures banning transgender girls and women, and in some cases boys and men, from publicly funded academic sports in categories that correspond to their gender identity. West Virginia passed a law in 2021 declaring that students whose biological sex is male as determined at birth cannot participate on women's teams.
Transgender advocates say the politically charged issue of who should play women's sports is disproportionate. In Kentucky, only one student-athlete was subject to a state law similar to West Virginia's. Competitive sports leagues have their own rules regarding trans athletes.
When she first filed the lawsuit over the ban, Pepper Jackson said she “always finishes near the back of the pack” in track and field. By the time the decision was made, she had placed near the top in some events, but was lagging behind in others. Agee argued that these results were evidence of biological superiority and inequity. “The biological girls who attend these events have been left displaced and denied athletic opportunities because of Pepper Jackson,” he wrote.
The majority agreed with Pepper Jackson that simply being ahead of other girls in the competition did not mean that she had a biological advantage. There is little research on transgender performance or how many years of hormone treatment it takes to remove the physiological advantages of transfemale athletes who experience male puberty. But the court noted that the science is uncontroversial that these benefits only emerge after male puberty.
Biden administration proposes rules that would allow federally funded schools to prevent trans students from playing sports, as long as the decision is justified based on the sport involved, the student's age, and level of competitiveness did. Once these rules are announced, they could change the way future courts analyze similar cases, Block said.
Pepper Jackson also challenged the state law under the Equal Protection Clause of the Fourteenth Amendment. But the judges said the factual record is not strong enough to say there is no “important state interest” in West Virginia keeping Pepper Jackson from the team, which does not exist under federal civil rights law. He said it was a defensive measure.