The Supreme Court on Thursday denied West Virginia’s request to let it fully enforce a state law that bans transgender women and girls from participating on public school sports teams consistent with their gender identity.
In an unsigned order, the court denied West Virginia Attorney General Patrick Morrisey’s emergency request to let the state enforce the 2021 law. Justices Samuel Alito and Clarence Thomas dissented, saying they would have granted the request.
Earlier this year, a lower federal court ordered the state to temporarily stop halt the ban against Becky Pepper-Jackson, a 12-year-old transgender girl who sued the state over the law shortly after its passage.
Pepper-Jackson has been able to compete on her middle school’s cross-country and track teams as a result of the lower court’s injunction, and the Supreme Court’s decision to deny the emergency request means she can continue doing so.
“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, which she has been doing without incident for three going on four seasons,” the American Civil Liberties Union, the ACLU of West Virginia and Lambda Legal, all of which are representing Pepper-Jackson, said in a statement.
Though the law has remained on the books since 2021, lawyers for Pepper-Jackson said in recent court filings that the state is “not aware of any transgender student seeking to play school sports in West Virginia other than” her.
Morrisey described the court’s decision as a “procedural setback” in a statement Thursday, adding, “But we remain confident that when this case is ultimately determined on the merits, we will prevail.”
The court took an unusually long time to respond to the request, which was made nearly a month ago.
In his two-page dissent, Alito noted that the issue could soon come before the justices.
“This application concerns an important issue that this Court is likely to be required to address in the near future, namely, whether either Title IX of the Education Amendments of 1972 … or the Fourteenth Amendment’s Equal Protection Clause prohibits a State from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics,” he wrote.
Alito also wrote: “Among other things, enforcement of the law at issue should not be forbidden by the federal courts without any explanation.”
CNN Supreme Court analyst Steve Vladeck said that “it’s entirely possible that the court stayed out of this dispute for now not because it’s sympathetic to the plaintiff on the merits, but because of procedural issues with West Virginia’s behavior in this litigation.”
“Thus, today’s ruling is likely less a harbinger of how the Court will eventually deal with state laws restricting transgender athletes’ participation on public school sports teams, and more a reflection of a divide among the conservatives justices about when those procedural issues should – and shouldn’t – matter,” added Vladeck, who is a professor at the University of Texas School of Law.
West Virginia’s request to the Supreme Court represents the first time the sports issue has reached the high court. Measures like H.B. 3293 have gained considerable momentum in GOP-led states in recent years, with more than a dozen states having enacted similar bans since 2020.
Two years ago, the justices stayed out of a dispute over whether a trans student could use the bathroom that corresponded to his gender identity. Still, in a 6-3 decision a year before that, the court expanded workplace protections for gay, lesbian and transgender workers, handing a key win to LGBTQ Americans.
The West Virginia law states that sports teams at “any public secondary school or state institution of higher education must be designated based on “biological sex,” thus prohibiting trans women and girls from participating on women’s athletic teams “where competitive skill or contact is involved.”
“This Court should vacate the Fourth Circuit’s injunction and allow the Act to continue protecting West Virginia student athletes this spring and beyond,” Morrisey and attorneys for the Alliance Defending Freedom, which is representing a former college athlete who intervened in the case on behalf of West Virginia, wrote in their emergency request to the court last month.
“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 attorneys told the court. “The decision was the West Virginia Legislature’s to make. The end of this litigation will confirm that it made a valid one.”
But attorneys for Pepper-Jackson argued in court papers that the state’s claim that it’s being harmed by the appellate court’s preliminary injunction against the law is unfounded.
“In short, the Application does not come close to the type of urgent and compelling circumstances required for extraordinary relief from this Court,” they wrote. “There is no basis for this Court to order B.P.J. off the playing field where she has been for her entire middle school career to date and where her presence harms no one.”
Several friend-of-the-court briefs were filed to the Supreme Court in support of West Virginia’s request, with one signed by a number of famous athletes, including the tennis player Martina Navratilova, and Olympic champions Summer Sanders and Donna de Varona.
“By bringing their names, their voices, and their personal stories to this Court’s attention, amici hope to highlight the plea of women and girls across the nation: that this Court affirm their continued right to equal opportunity and to set in granite that females may not be put at a clear and targeted disadvantage based on their biological sex,” lawyers for the athletes wrote in the brief.
In addition to West Virginia, a number of other Republican-controlled states have enacted similar sports bans, with at least eight putting one on their books in 2022 alone. In pushing such measures, conservatives have argued that transgender women and girls have physical advantages over cisgender women and girls in sports, though a 2017 report found “no direct or consistent research” on any such advantage.
This story has been updated with additional details.