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Supreme Court Rejects Bid to Enforce Legislation Preventing Biological Males From Competing in Girls’ Sports

The U.S. Supreme Court on Thursday rejected an attempt by West Virginia to prevent biological males from competing in girls’ sports.

Samuel Alito and Clarence Thomas dissented and would have granted the state’s application to enforce the 2021 Save Women’s Sports Act.

West Virginia, at least for now, cannot enforce the legislation against a 12-year-old biological male from competing on a middle school girls’ track and cross-country teams.

“This is a procedural setback, but we remain confident that when this case is ultimately determined on the merits, we will prevail,” West Virginia Attorney General Patrick Morrisey said.

NBC News reported:

In barring transgender girls from participating in girls’ sports at the middle school, high school and college levels, the law says gender is “based solely on the individual’s reproductive biology and genetics at birth.” As such, it says, a female is a person “whose biological sex determined at birth as female.”

The law was challenged by Pepper-Jackson, then 11, who wanted to try out for the cross country and track teams in her middle school in Harrison County. She is backed by the American Civil Liberties Union and the LGBTQ group Lambda Legal.

“We are grateful that the Supreme Court today acknowledged that there was no emergency and that Becky should be allowed to continue to participate with her teammates on her middle school track team,” Pepper-Jackson’s lawyers said in a joint statement. They called the state’s attempt to enforce the law “a baseless and cruel effort.”

Her lawyers said the law violated the 14th Amendment to the Constitution, which requires that the law apply equally to everyone, as well as Title IX of the Education Amendments Act of 1972, which prohibits sex discrimination in education.

During the litigation, Pepper-Jackson has participated on her school’s cross country and track teams, where she has been welcomed by teammates and coaches, her lawyers said. She is undergoing puberty-delaying treatment and hormone therapy.


The Supreme Court will likely have to provide a final ruling on the case in the near future.

As SCOTUS Blog explained, a challenge to the law is continuing to play out in the lower courts:

In a brief unsigned order, the justices denied West Virginia’s request to be allowed to enforce a law that bars transgender girls from playing on girls’ sports teams in public secondary schools and colleges while a challenge to the law continues in the lower courts.

Calling the issue in the case “an important” one that the justices are “likely to be required to address in the near future,” Justice Samuel Alito dissented from Thursday’s order, in a two-page opinion joined by Justice Clarence Thomas. Alito complained that a federal court of appeals had not provided any explanation for its order barring enforcement of the law – a criticism often leveled at the Supreme Court’s own rulings on its emergency docket.

The West Virginia legislature passed H.B. 3293, the law at the center of the case, in April 2021. Shortly after that, a transgender girl known in court filings only as B.P.J. went to federal court to challenge the law. She argued that – at least as applied to her – the law violates the Constitution’s guarantee of equal protection under the law by singling out transgender girls for exclusion from girls’ sports teams. She also contended that the law violates federal civil rights laws barring sex discrimination in educational institutions that receive federal funding.

Read the unsigned order HERE.


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