Thu, 30 Nov 2023

WASHINGTON (CN) - She received puberty-delaying medication and gender-affirming hormones. Now 12-year-old Becky Pepper-Johnson wants to join her school's cross-country and track teams, but a West Virginia law prevents her from doing so. 

"A critical point here is that when you have sex-segregated sports with cis girls and cis boys, the overall athletic opportunities for boys and girls have to be equal," Joshua Block, senior staff attorney for the ACLU's LGBTQ & HIV Project, said in a phone call. "When you exclude transgender girls from participating on girls' sports teams, you're excluding them effectively from athletics entirely." 

The ACLU is among a group of legal advocates representing Pepper-Jackson as her case heads to the Supreme Court.

West Virginia lawmakers argued they needed to enact legislation to ensure that sports were as safe and fair as possible. They said the purpose behind the Save Women's Sports Act was to address claims of "biological males increasingly competing against - and beating - females in women's sports events."

"The Sports Act ensures fair and safe play in women's and girls' sports; it restricts no one from trying out for men's, boys', or co-ed teams," West Virginia Solicitor General Lindsay See wrote in the state's application. "The Act thus aims to 'promote equal athletic opportunities for the female sex' due to 'inherent differences' of biology that make it unfair or even dangerous for males to compete against female athletes." 

Specifically, the law prevent biological males from competing against biological females in contact or competitive sports designated for females. While transgender girls cannot participate in girls' sports teams under the state's law, boys' teams are open to them and any girl.

The broad law differs from other sports regulations on transgender athletes by preventing their participation altogether instead of setting requirements for participation. That distinction has set up a legal battle over the constitutionality of West Virginia's law, which advocates say is discriminatory. 

Pepper-Jackson sued her school board in 2021, arguing that the decision to prevent her from playing sports violates her rights under the equal protection clause in the 14th Amendment and Title IX. 

After initially blocking the law, U.S. District Judge Joseph Goodwin ruled against Pepper-Jackson in January. Goodwin said West Virginia had the right 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."

Last month, the Fourth Circuit blocked Goodwin's ruling in a 2-1 vote. West Virginia is now challenging the appeals court's ruling at the Supreme Court. It asked Chief Justice John Roberts last week to vacate the Fourth Circuit's stay, arguing it "upsets the way things traditionally work in school sports." 

The application only asks the justices to answer a procedural question: Should the Fourth Circuit have vacated the district judge's ruling? In its brief before the justices, however, West Virginia puts a heavy emphasis on the merits of its arguments, arguing that the likelihood Pepper-Jackson will lose means that the Fourth Circuit's ruling shouldn't be maintained. 

West Virginia argues its broad law banning all transgender girls from girls' sports prevents courts from micromanaging on an athlete-by-athlete basis who can play which sport. But experts cite nuances with transgender athletes that would require this approach. These nuances consider if an athlete has gone through puberty or taken hormone-enhancing drugs - all of which impact how "fair" their participation would be. 

"There are a number of bodily changes that occur that give anyone who goes through male puberty a substantial athletic advantage over anyone who doesn't," said Joanna Harper, a doctoral candidate at Loughborough University who studies transgender athletes and has worked with sport-governing bodies on policies for transgender athletes. "Size, strength, speed, stamina - all of these things are greatly enhanced by the increased testosterone levels that occur with male puberty. So that's why we don't have men in women's sports, but trans girls, trans women, aren't men."

Speaking over the phone, Harper said scientific research in this area is still in its infancy but there's some evidence that hormone therapy affects athletic performance. So while it is not untrue that trans women could have an advantage in girls' sports, experts say that does not mean they should be excluded entirely but must abide by certain regulations. 

"It's certainly true that trans women will maintain some advantages over cis women, even after hormone therapy," Harper said. "There's little doubt that after hormone therapy trans women will still on average be taller, bigger and stronger than cis women, and those are advantages in many sports. Advantages, however, are allowed in sports. And so this question is it unfair? It's something that hasn't been answered." 

Becky Pepper-Jackson is a transgender teen at the center of a legal battle over transgender participation in West Virginia sports. (Raymond Thompson/ACLU via Courthouse News)

Pepper-Johnson argues West Virginia's ban violates equal protection by discriminating based on transgender status. To deny opportunities based on sex, the law requires an exceedingly persuasive justification. Advocates claim West Virginia's reasoning for excluding Pepper-Johnson does not meet this standard of scrutiny. 

"Here you have a law that has this categorical exclusion of trans girls, and the alleged justification for the law is that there are athletic advantages associated with the changes that happened during puberty," Block said. "That can't possibly provide an exceedingly persuasive justification for excluding Becky from the team because none of those justifications actually apply to her." 

The state argues a lower level of scrutiny should be applied and claims that its law has to serve only an important government objective. West Virginia also claims its law can discriminate based on transgender status because it distinguishes based on biological sex. 

"Laws may classify based on biological sex like this without unlawfully discriminating based on transgender status or gender identity," See wrote. "Nor does the fact that the Act may affect some transgender athletes mean that the law classifies based on gender identity. Many a law may 'affect certain groups unevenly, even though the law itself treats them no differently from all other members of the class described.'" 

West Virginia's attorney general's office did not respond to questions concerning this case. 

Pepper-Jackson's other argument against West Virginia's ban rests on Title IX of the Education Amendments of 1972, a federal law that prohibits sex discrimination in education programs. Advocates argue the highcp court's 2020 ruling in Bostock v. Clayton County affirmed the position that Title IX protects against transgender discrimination when it said Title VII of the Civil Rights Act of 1964 included protections for transgender people. 

"They passed this law explicitly for the purpose of excluding transgender athletes under any circumstances," Block said. "They defined sex under the law as being someone's reproductive anatomy and genetics at birth, and the intended purpose of crafting that definition would be to exclude people like B.P.J. who has been on puberty-blocking medication and gender-affirming hormones. ... Crafting a law like that for the purpose of excluding transgender girls for no other reason is sex discrimination under Title IX." 

West Virginia cites a specific line of text from the statute, arguing Title IX prevents schools from treating individuals "worse than others who are similarly situated." The state claims Pepper-Jackson is not "similarly situated" to biological females, so therefore she doesn't have a claim under Title IX. West Virginia also cites Title IX's focus on sex, not gender identity. 

"Throughout Title IX, 'sex' is used as a binary concept, referring to male and female," See wrote. 

Some experts think the confusion over who should be protected under Title IX stems from how unique the statute is in contrast to other feminist-inspired laws. Most push for equity between the sexes focused on desegregation, however, sports proved to be different. In sports, gender segregation was maintained as an argument for gender equity. 

"It makes a certain amount of sense, but it doesn't fit the bodies and identities that exist," Susan Cahn, a professor of history at the University at Buffalo who specializes in gender and sexuality in sports, said in a phone call. "So these questions are going to come up and then you have to really think about what is fairness." 

The idea of balancing the scales within sports is also a complex issue considering there are many advantages that are celebrated. Experts point not only to genetic advantages that allow some people to have the upper hand in sports but also to sociological advantages. 

"I think it's unclear exactly how much testosterone creates an advantage, but I think part of the myth is that there really is a level playing field to start with," Cahn said. "Sports are all about not being level. Some people are just gifted or have social advantages that help them reach their maximum potential." 

While West Virginia claims its ban on transgender girls' participation in sports is in the protection of girls' sports, experts argue it perpetuates a belief that women are inferior athletes. The state has focused its law on transgender athletes' participation in women's sports without considering their participation in male sports. 

"I think it harms all girls, these bills, because it perpetuates the idea that athletic ability is fundamentally masculine," Cahn said. "It pushes an ideology that sees girls and women as inferior athletes." 

The experts who are against bans like West Virginia's are not against restrictions on transgender athletes' participation in sports, however, they argue the issue is too nuanced to create broad laws that create the same standard for middle school recreational sports and elite athletes. Advocates argue some politicians are exploiting the complexities of the issue to push anti-LGBTQ+ legislation. 

"You do have to have this nuanced conversation," Harper said. "I think that's one of the reasons why these very hateful people have found some success with using this as a wedge issue to say, oh, it's not fair for trans women to compete in women's sports, therefore, it's OK for us to put in all these other hateful rules against trans people too. They use this one issue to get in, and then they do all these other bills that don't have anything to do with women's sports. And it's extraordinarily unfortunate that this is the legislative landscape as we now see it in many states." 

Source: Courthouse News Service

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