Federal Court Rejects State Transgender Student Athlete Ban

The ACLU and Lambda Legal, a national LGBTQ rights law firm, brought the case on behalf of a 13-year-old middle school student in Harrison County who wanted to run on her track team.

A federal appeals court struck down West Virginia’s ban on transgender student participation in school sports Tuesday.

The Fourth U.S. Circuit Court of Appeals in Richmond, Virginia, said the 2021 law violated Title IX, the landmark 1972 law that enshrined gender equality in school sports.

The ACLU and Lambda Legal, a national LGBTQ rights law firm, brought the case on behalf of a 13-year-old middle school student in Harrison County who wanted to run on her track team.

“The ruling makes clear that the law is discriminatory,” said Billy Wolfe, an ACLU-WV spokesman, in an email. The student, Becky Pepper-Jackson, is the only one affected by the ruling, Wolfe said, but encouraged others who might be affected to contact the ACLU.

The 2-1 decision, for now, invalidates House Bill 3293, which the legislature enacted and Gov. Jim Justice signed. 

Last year, a U.S. district judge upheld the enforcement of the law, but the Fourth Circuit overruled that decision.

In an emergency appeal last year, West Virginia Attorney General Patrick Morrisey asked the U.S. Supreme Court to allow the state to enforce the law while the Fourth Circuit considered the case. The justices declined.

In a statement Tuesday, Morrisey said he would continue to defend the law.

West Virginia is one of 21 states that have enacted some type of restriction on transgender student participation in school sports.

In 2020, the Fourth Circuit ruled in favor of a Virginia transgender boy who challenged his school’s refusal to let him use the bathroom that matched his gender identity.

The U.S. Supreme Court declined to hear the appeal in that case as well.

In Tuesday’s ruling, one of the three judges, G. Steven Agee, dissented. He was nominated by President George W. Bush to the court in 2008.

Opponents Of House Bill Say It Punches Down on Trans People Instead Of Uplifting Women

The House of Delegates held a public hearing Tuesday on a bill that would restrict West Virginians’ access to the bathrooms, changing rooms, and locker rooms that match their sex. The bill sparked impassioned speeches from attendees on both sides of the issue. 

The House of Delegates held a public hearing Tuesday on a bill that would restrict West Virginians’ access to the bathrooms, changing rooms, and locker rooms that match their sex. The bill sparked impassioned speeches from attendees on both sides of the issue. 

Delegates and members of the public gathered to voice their opinion on House Bill 5243, a bill that attempts to define who is considered female or male.

The bill’s sponsors have named it the ‘Women’s Bill of Rights’. However under the bill there are no specific rights allotted to women. 

One of the speakers against the bill was Rust Williams, an advocacy specialist with the American Civil Liberties Union of West Virginia. He said he wishes the Legislature would pass legislation that would help lift up women in the state by addressing equal pay, maternity leave, and removing sales tax on feminine hygiene products like tampons.

“Since you are either incapable or completely ignore interest in drafting bills that actually help, I thought I’d do your job for you and drafted an actual ‘Women’s Bill of Rights’,” Williams said. “This completely restores access to abortion and the full range of reproductive health care services. It removes the tax on feminine hygiene products and infant products such as bottles and diapers, you know, all the things that mothers have to pay for. It addresses menstrual equity and provides period products and all West Virginia schools, jails and prisons. It addresses equal pay, it addresses maternity leave and family leave. It updates the definition of domestic violence to include coercive control.” 

Another speaker opposed to the bill was Max Varney, who identified as a “trans West Virginian” and asked legislators how their existence threatens someone.  

“I was born and raised in Mingo County. I was a barefoot, holler’ child and my soul resides in the mountains,” said Varney. “I am not an offense to the public. I am not a threat to the public, nor is my existence offensive.” 

Varney echoed others who spoke out against the bill by saying that it was not a bill to help women in the state but instead to restrict transgender people’s rights. 

“This bill crushes the rights of transgender people. Your willingness to use women’s rights as a cover for transphobia is not shocking, but it is still outrageous and putrid. This bill is dehumanizing,” Varney said. 

Nila Thompson was one of the seven attendees to speak in favor of the bill. She said this bill would prevent her from having to share a locker room with a trans girl.

Thompson told a story about a time in August of 2023 that she had to share a changing room with a trans woman. 

“Not only would ‘it’ go into the changing room and not even change,” Thompson said. “But he would stand there and watch as other biological females undressed.”

She said following this her family approached the school with concerns and that they told her that if anyone felt uncomfortable, they could use the men’s changing room which was unoccupied during that period.

“The school board made it clear that my rights are not valued, but House Bill 5243 guarantees my rights, safety, privacy and protection,” Thompson said. 

Lead sponsor of the bill Del. Kathie Hess Crouse, R-Putnam, said she still plans on voting for the bill, and does not plan on changing any language in the bill after hearing testimony from the 20 speakers against the bill. She said the bill is aptly named the Women’s Bill of Rights because it protects women’s privacy. 

“We deserve and have the right to be called a woman and know what a woman is,” Crouse said. “Same with the man, they have that right to know what a man is, and what a man is defined as. And we have a right to our own single sex spaces. And that right should be protected.” 

However many trans advocates say that placing a trans woman or trans man in the opposite genders changing room would put them at risk. CDC data shows that 43 percent of transgender youth have been bullied on school property but that trans and LGBTQ people who went to schools that had LGBTQ+ friendly policies had a lower instance of bullying. 

The bill is on second reading in the House of Delegates.

Morrisey Argues In Favor Of Trans Sports Ban To Fourth Circuit

On Friday, West Virginia Attorney General Patrick Morrisey continued to defend the state’s law barring transgender athletes from participating on sports teams that align with their gender identity.

West Virginia Attorney General Patrick Morrisey presented arguments Friday to the Fourth U.S. Circuit Court of Appeals in Richmond, Virginia in a case challenging West Virginia’s law barring transgender athletes from participating on sports teams that align with their gender identity.

In 2021, the West Virginia Legislature enacted a law “to defend the integrity of women’s sports” that prohibits transgender girls and women in the state from competing on sports teams at “any public secondary school or state institution of higher education.”

The bill was signed into law by Gov. Jim Justice on April 28, 2021. 

The American Civil Liberties Union, the ACLU of West Virginia, Lambda Legal, and Cooley LLP challenged the law on May 8, 2021, on behalf of Becky Pepper Jackson, a now 13-year-old middle school transgender girl who would be kicked off her middle school’s girls’ cross country and track and field teams if the law were enforced.

Since then, Morrisey’s office has fought to dismiss the lawsuit.

Morrisey was assisted by attorneys from Alliance Defending Freedom (ADF), a Christian conservative legal organization, in filing this litigation.

In January, a federal judge in the U.S. District Court for the Southern District of West Virginia upheld the law, ruling that the state legislature’s definition of “girl” and “woman” in the context of HB 3293, the “Save Women’s Sports Act,” is “constitutionally permissible” and that the law complies with Title IX.

Title IX was signed into law on June 23, 1972. It prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government.

Morrisey said the law protects female athletes’ safety and keeps female sports competitive for female athletes, consistent with Title IX and the Constitution. 

Jackson’s legal team won a ruling from the lower court blocking enforcement of the law pending final resolution of the case. In February 2023, the U.S. Court of Appeals and the Fourth Circuit blocked the state’s effort to kick Jackson off the team as her legal team appealed the lower court’s subsequent ruling upholding the 2021 law.

In August of this year, the Fourth Circuit reinstated a preliminary injunction that allowed Jackson to continue participating on girls’ sports teams until it rules on her appeal.

The Attorney General’s Office contends that Title IX doesn’t mention transgender status. Instead, the marker is biological sex, which recognizes that there are distinct differences between males and females. Further, Title IX prohibits discrimination on the basis of biological sex, not gender identity.

“Look, I’m very hopeful that we’re going to prevail on the Fourth Circuit,” Morrisey said in a recorded statement. “I think we’re absolutely correct on the law. The district court got it right. And to us, it’s a matter of basic fairness and common sense that biological males should not be playing sports with women. We submitted 3,000 pages; 500 docket entries. This should be so straightforward. I’m hopeful the Fourth Circuit sees our way after these arguments.”

West Virginia is one of 23 states that have banned transgender girls from playing on girls’ teams in the last three years.

Putnam County Enacts Measure Some Say Could Restrict Drag Shows

The language of the ordinance is identical to one adopted earlier this month in Jefferson County, West Virginia.

The Putnam County Commission approved an ordinance Tuesday that could restrict drag shows.

With a 3-0 vote, Putnam County’s commissioners banned minors from seeing certain adult performances in unincorporated areas of the county.

Although the ordinance does not specifically single out drag, opponents say that is the intent.

As written, the law does not appear to prohibit a drag show at a city park in Hurricane where the Putnam Pride festival is scheduled to take place this weekend.

The language of the ordinance is identical to one adopted earlier this month in Jefferson County, West Virginia. 

As the ACLU of West Virginia points out, drag performances are protected speech. Federal courts have recently blocked similar laws in Florida and Tennessee.

Morrisey Takes Trans Sports Ban To The Supreme Court

In 2021, the West Virginia Legislature enacted a law “to defend the integrity of women’s sports” that prohibits transgender girls and women in the state from competing on sports teams at “any public secondary school or state institution of higher education.”

West Virginia Attorney General Patrick Morrisey announced his office is asking the U.S. Supreme Court to allow the “Save Women’s Sports Act” to take effect.

In 2021, the West Virginia Legislature enacted a law “to defend the integrity of women’s sports” that prohibits transgender girls and women in the state from competing on sports teams at “any public secondary school or state institution of higher education.”

The bill passed on April 28, 2021 and the ACLU filed a lawsuit on May 8, 2021. Since then Morrisey’s office has fought to dismiss the lawsuit.

“Today, we are stepping forward with a major announcement pertaining to a filing that we’ll be making later this afternoon to defend the integrity of women’s sports here in West Virginia,” Morrisey said. “We will be making a filing up at the United States Supreme Court in order to lift the injunction that was recently placed upon the Integrity In Women’s Sports Law in the Fourth Circuit.”

Morrisey was assisted by attorneys from Alliance Defending Freedom (ADF), a self-proclaimed Christian-led legal organization, in filing this litigation.

Rachel Csutoros, legal counsel with the ADF called the filing a historical moment for all female athletes.

“It’s unfair, and it’s unsafe,” Csutoros said. “No males should be allowed to take athletic opportunities away from women. That’s why we’re giving the Supreme Court their first chance to protect women’s fairness and women’s sports from today’s threats. The Fourth Circuit was wrong to stop a valid law with no factual or legal basis. And we urge the Supreme Court to uphold West Virginia’s laws to respect the will of its state citizens and to preserve equal athletic opportunities for women and girls.”

Morrisey said the law protects female athletes’ safety and keeps female sports competitive for female athletes, consistent with Title IX and the Constitution. 

Title IX was signed into law on June 23, 1972. It prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government.

“We talked about the 50th anniversary of Title Nine,” Morrisey said. “I think we should remember that today. It’s been so much good for women’s leadership and women’s sports. And I am optimistic of the result that we should be able to get from the high court.”

American Civil Liberties Union Of W.Va. Launches Hotline To Help Voters

The American Civil Liberties Union of West Virginia launched a hotline for West Virginia voters with questions or concerns about the upcoming general election. The hotline is also aimed at helping voters who may experience issues on Election Day.

The ACLU of West Virginia announced this week that if voters have any concerns between now and Election Day, they can call the group’s 2020 Election Protection Hotline.

The ACLU said the hotline will help voters overcome roadblocks, such as a poll worker claiming they aren’t registered, or if someone isn’t able to access their polling place because of a physical disability, or confusion over voter-identification requirements.

“Voting is a fundamental right and forms the foundation of our democracy,” ACLU-WV Legal Director Loree Stark said in a press release. “While we hope that voters do not encounter any significant issues with voting, we anticipate there may be some unresolved questions surrounding the still relatively new process of absentee voting.”

The West Virginia Secretary of State’s office reports that 68,500 West Virginians have applied for absentee ballots so far – many citing the coronavirus for choosing not to visit polls in person.

Starting Friday, Sept. 18, the ACLU’s hotline will be staffed from 9 a.m. to 5 p.m., Monday through Friday.

When early voting begins on Oct. 21, the hotline will also be staffed from 9 a.m. to 5 p.m. on Saturdays.

On Election Day, Nov. 3, ACLU staffers, students from the West Virginia University College of Law, and other volunteers will staff the hotline from 7:30 a.m. until polls close.

Callers will be able to leave a message if they do not immediately reach a hotline staffer. Voicemail is currently active on the hotline and calls will be returned as soon as possible, according to the ACLU.

The group’s 2020 Election Protection Hotline is 304-355-5012.

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