Judge Upholds West Virginia's Trans-Exclusionary Sports Law

West Virginia can continue to enforce its law barring transgender girls and women from competing on female school sports teams, a federal judge ruled Thursday.

The law is constitutional because the state has a recognized interest in providing equal athletic opportunities for females -- that is, cisgender ones, according to U.S. District Judge Joseph R. Goodwin of the Southern District of West Virginia.

A suit against the law was filed in 2021 by Becky Pepper-Jackson, a trans girl represented by the American Civil Liberties Union, its West Virginia affiliate, Lambda Legal, and the law firm of Cooley LLP. In July of that year, Goodwin temporarily blocked the law's enforcement and said Pepper-Jackson could try out for girls' sports teams.

But in his Thursday ruling, Goodwin said that while Pepper-Jackson takes puberty blockers, suppressing testosterone and any physical advantage the hormone confers, it's possible that other trans girls don't, and therefore they would have an advantage over cis girls.

"Given B.P.J.'s concession that circulating testosterone in males creates a biological difference in athletic performance, I do not see how I could find that the state's classification based on biological sex is not substantially related to its interest in providing equal athletic opportunities for females," the judge wrote.

He said many trans girls may not have access to puberty blockers or other gender-affirming treatments, and at any rate trans people are not required to have any medical treatment and may choose only social transition. "And, as evidenced by the thousands of pages filed by the parties in this case, there is much debate over whether and to what extent hormone therapies after puberty can reduce a transgender girl's athletic advantage over cisgender girls," he added.

"The fact is ... that a transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males," Goodwin continued. "And biological males generally outperform females athletically. The state is permitted to legislate sports rules on this basis because sex, and the physical characteristics that flow from it, are substantially related to athletic performance and fairness in sports." The state could enact a more inclusive law, but it is not within the court's jurisdiction to force it to do so, he said.

It's worth noting that while Goodwin mentions lack of access to puberty blockers, many of the right-wing politicians seeking to keep trans girls off girls' sports teams are also trying to prevent trans youth from receiving these drugs and other gender-affirming treatments. Additionally, numerous state school athletic associations have policies requiring trans girls to receive such treatment for a specified time and have testosterone suppressed to a certain level before they can compete alongside cis girls. And there is no widespread domination of female sports by trans participants.

Lawyers with the ACLU told NPR they are consulting with other attorneys in the case to determine whether there will be an appeal or other action. Meanwhile, West Virginia Attorney General Patrick Morrisey applauded the ruling, according to the outlet. "This is not only about simple biology but fairness for women's sports, plain and simple," he said. "Opportunities for girls and women on the field are precious, and we must safeguard that future."