Biological males blocked from competing in women's school sports in West Virginia: federal court

A federal judge in West Virginia has upheld a state law preventing male athletes who identify as female from participating in female school sports.

In a ruling on January 5, Judge Joseph R. Goodwin of the Southern District of West Virginia said that HB 3293, the Save Women’s Sports Bill, was "constitutionally permissible." The bill defines "girl" and "women" as biologically female for the purpose of secondary school sports and Goodwin found that this was "substantially related to its important interest in providing equal athletic opportunities for females."

"I have no doubt that HB 3293 aimed to politicize participation in school athletics for transgender students," said Goodwin in the ruling. "Nevertheless, there is not a sufficient record of legislative animus. Considering the law under the intermediate scrutiny standard, I find that it is substantially related to an important government interest."

The law was first introduced in March 2021 but was challenged by the American Civil Liberties Union (ACLU). The ACLU represented trans-identified male middle school student Becky Pepper-Jackson who was barred from the girls' cross-country team. This, the ACLU argued, was a violation of Pepper-Jackson’s rights under the 14th Amendment’s Equal Protection Clause and Title IX, the federal state statute that prohibits sex-based discrimination, reports Fox News.

At the time, Goodwin ruled in favor of the ACLU and blocked the law at the preliminary stage, ruling that Pepper-Jackson was being excluded from school sports on the basis of sex making it a Title IX violation. 

While Goodwin acknowledged in his new decision that the law was seeking to "prevent transgender girls from playing on girls’ sports teams," he highlighted the biological differences between males and females that give males a significant sporting advantage.

"While some females may be able to outperform some males, it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes. This is not an overbroad generalization, but rather a general principle that realistically reflects the average physical differences between the sexes," said the judge.

Goodwin also noted that while Pepper-Jackson had taken puberty blockers, not all transgender athletes do. Some only socially transition, while others take blockers and hormones at a later stage in puberty. Goodwin stated that "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."

"The fact is, however, that a transgender girl is biologically male and, barring medical intervention, would undergo male puberty like other biological males. 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," Goodwin ruled.

The West Virginia ACLU had filed the lawsuit alleging that banning girls from participating in school sports because they are transgender is unconstitutional. 

In a 2019 speech, developmental biologist Dr. Emma Hilton demonstrated just how wide the gap between the athletic performance of biological males and females is. 

"So big is the gap, there are 9000 males between 100m world record holders Usain Bolt and FloJo. So early does the gap emerge, the current female 100m Olympic champion, Elaine Thompson, is slower than the 14-year-old schoolboy record holder," said Hilton.

The decision was supported by West Virginia Attorney General Patrick Morrissey.

"This is not only about simple biology, but fairness for women’s sports, plain and simple," Morrissey, who is a Republican, said in a statement. "Opportunities for girls and women on the field are precious and we must safeguard that future. Protecting these opportunities is important, because when biological males compete in a women’s event, women and girls lose their opportunity to shine."

Pepper-Jackson is represented by the West Virginia ACLU, as well as LGBT legal defense group Lambda Legal and law firm Cooley LLP. According to Education Week, the groups said in a joint statement that they were disappointed and still considering the next step.

"The District Court’s ruling is disappointing both for its harmful conclusion and its spurious argument. The fact is the equal and fair participation of transgender youth takes nothing away from cisgender youth and helps to maintain a level playing field for all youth," said the statement.