Federal judge blasts colleagues for overturning law banning boys from girls' sports: 'Turns Title IX on its head'

A federal appeals court has struck down a West Virginia law protecting the fairness of school athletics.

In 2021, West Virginia passed the "Save Women's Sports Act," becoming one of the first states in the United States to protect the fairness of sports.

The law requires that every student athlete must participate on the team or in the event congruent with their "biological sex as indicated on the athlete’s original birth certificate issued at the time of birth." The law doesn't ban transgender-identifying students from participating in sports altogether. Rather, it bans biological boys from playing on teams with biological girls and vise versa. This is an important distinction.

On Tuesday, the 4th Circuit Court of Appeals ruled in a 2–1 decision that the law violates the Title IX rights of Becky Pepper-Jackson, a biological boy who identifies as a girl.

The court ruled:

The question before us is whether the Act may lawfully be applied to prevent a 13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade from participating in her school’s cross country and track teams. We hold it cannot.

Pepper-Jackson and the American Civil Liberties Union, which represents Pepper-Jackson, have been litigating the law for years. The ruling is a clear win for them.

But the ruling is also narrow because the circumstances of the case are unique. Pepper-Jackson has been living as a girl for more than half of his life, which includes years of taking puberty blockers and even having the sex on his birth certificate changed.

Whether the court would have ruled differently in the case of a student athlete who only recently began identifying as transgender is unknown.

Still, Judge G. Steven Agee wrote in a scathing dissent the majority's opinion has profound consequences.

"The majority’s determination that transgender girls are similarly situated to biological girls regardless of any potential advantage, and therefore that separating sports teams by biological sex is discrimination against transgender girls, has far reaching implications under Title IX," he wrote.

Agee continued:

In short, it means that states cannot exclude transgender girls from biological girls’ sports teams even when the transgender girls have gone through puberty and it is even clearer that they have a significant physiological advantage over biological girls. And allowing transgender girls — regardless of any advantage — as participants in biological girls’ sports turns Title IX on its head and reverses the monumental work Title IX has done to promote girls’ sports from its inception.

After the ruling, West Virginia Attorney General Patrick Morrisey (R) vowed to continue the right to protect women's sports. That fight will presumably include an appeal to the Supreme Court.

That appeal, Agee said, cannot come soon enough.

"One can only hope that the Supreme Court will take the opportunity with all deliberate speed to resolve these questions of national importance," the judge wrote.

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