The Supreme Court on Thursday allowed a 12-year-old transgender girl in West Virginia to continue competing on her middle school’s girls sports teams while a lawsuit over a state ban continues.
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 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. 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, track and field banned transgender athletes from international competitions. 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.
West Virginia Gov. Jim Justice, a Republican, also 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 schools sports competition 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.
U.S. 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 B.P.J., appealed. A three-judge panel of the 4th U.S. 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’s, and Toby J. Heytens, an appointee of President Joe Biden’s. Judge G. Steven Agee, an appointee of former President George W. Bush, dissented.
The Supreme Court provided no justification for its action Thursday.
In dissent, 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. ... 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.