The War on Transgender Athletes

In many ways, the world of sports serves as a microcosm of society at large. Through competition, we are able to witness the full range of human experiences – hardship, grief, loss, perseverance, joy, and victory. Many people feel almost spiritual connections to the teams and players that they root for: sports are not just a game; they are an important part of a person’s identity and a person’s life. Because of this deep-rooted connection to sports that many people have, the world of sports can be a useful tool for explaining and better understanding just exactly how humans tick. What matters to them, or what does not matter to them? What they value, or what they do not value. What they are willing to applaud, and what they are willing to boo. What their politics are, or what their politics are not. The sports world is rife with such examples.

As of recent, the sports world has begun to confront the issue of transgender athletes. With society as a whole being confronted with, and oftentimes pushing hostilely back against transgender people, it is no wonder that this fight has seeped into the world of sports as well. Lia Thomas, a former member of the University of Pennsylvania’s swim team, became the figurehead of the over-sensationalizing of transgender athletes in women’s sports being peddled by conservative and right-wing media groups looking to actively attack not only the idea of transgender women competing in women’s collegiate athletics but also Thomas herself. The debate on transgender athletes has only been heightened in the last year or so, and most recently came before the Supreme Court of the United States in West Virginia, et al., v. B. P. K., by her next friend and Mother, Heather Jackson.

The background to the case involves Becky Pepper-Jackson, a twelve-year-old transgender girl who was a member of the female track team at her school. When West Virginia passed House Bill 3293 in 2021 banning the participation in sports by transgender athletes, the American Civil Liberties Union (“ACLU”), the ACLU West Virginia, Lambda Legal, and Cooley LLP filed a lawsuit challenging the constitutionality of the law. House Bill 3293 was just one of the hundreds of anti-LGBTQ bills that were brought before state legislatures in 2021 – as society goes, so goes sports. Interestingly, despite the bill’s purported goal of providing better, more fair opportunities to female athletes, the bill was not backed by any mainstream sporting or health organizations.[1]

On July 21, 2021, the United States District Court for the Southern District of West Virginia (the “District Court”) ruled that it was “clear” that Becky Pepper-Jackson was being excluded from school athletics on the basis of her sex, and granted a preliminary injunction allowing for her to try out to be a member of the track team “in the same way as her girl classmates” while the case proceeded.[2] The victory was short-lived, however, as the District Court granted summary judgment to the State of West Virginia on January 5, 2023, allowing House Bill 3293 to go into effect.[3] While the District Court Judge, Judge Joseph R. Goodwin, stated in his opinion that he had “no doubt that H.B. 3293 aimed to politicize participation in school athletics for transgender students,” he did not find that “a sufficient record of legislative animus” was shown and, therefore, considering the law under an intermediate scrutiny standard,[4] he found that the law was substantially related to an important government interest and therefore could not be struck down.[5] The U.S. Court of Appeals for the Fourth Circuit granted a stay motion on the District Court’s ruling pending appeal, which allowed for Becky Pepper-Jackson to join the track team (for the time being), and the State of West Virginia responded by filing application on March 13, 2023, with the Supreme Court of the United State (the “Supreme Court”) to vacate the stay motion and prevent Becky Pepper-Jackson from participating on the track team as the litigation continued.

The Supreme Court rejected the State’s application during the shadow docket, which, unfortunately, means that no opinion was given as to the Supreme Court’s reasoning behind the rejection.[6] The rejection comes as a bit of a surprise given the Supreme Court’s conservative majority, so the lack of reasoning is disappointing, especially given the penchant for the Supreme Court’s supermajority to “aggressive[ly] use . . . the emergency docket to deal with controversial issues without full briefing and oral argument.”[7] Justice Alito and Justice Thomas did dissent, giving a brief view into how the Supreme Court may view similar cases in the future. In their dissent, Justices Alito and Thomas stated that the application “concern[ed] 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, 86 Stat. 373, 20 U.S.C. § 1681 et seq., 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.”[8]

In a fair point, Justices Alito and Thomas stated that they did not believe that the application should have been denied given the lack of an adequate (in their opinion) explanation by the Fourth Circuit Court of Appeals, which as a general practice does not explain orders pending appeal. The dissent indicates, though, that Justices Alito and Thomas would have ruled in favor of the State of West Virginia, given that, if they agreed with the denial, the appropriate response would have been a concurrence specifying in more detail why the denial was granted and taking a stance against the Fourth Circuit Court of Appeals’ practice of not explaining orders pending appeal. On the other hand, Becky Pepper-Jackson’s attorneys argued that the State of West Virginia “should not be allowed to use the [Supreme Court’s] emergency docket to force the court” to give a “preview” of how it felt on the issue given that no appeals court had addressed the issue.[9] In either case, the case will continue before the Fourth Circuit Court of Appeals without intervention by the Supreme Court, which does not rule out a later trip to the Supreme Court for its ultimate resolution.

It is telling that the words used by the attorneys for the State of West Virginia in its application to vacate the injunction concerning House Bill 3293 were in the same vein of fear-mongering rhetoric used by conservative talk media when discussing transgender athletes. The State’s attorneys set up the issue of transgender athletes as “biological males identifying as female” jumping from men’s athletics to female athletics to beat female athletes. What this language ignores is that, based on a study by the Centers for Disease Control and Prevention published in 2019, only roughly 1.8% of high school students identify as transgender,[10] and of that, 1.8% only 14% of transgender boys and 12% of transgender girls play sports, according to a report by the Human Rights Campaign.[11] In other words, only roughly 0.44% of high school athletes are transgender.[12] As a society, we tend to over-sensationalize things that are different than what we are accustomed to. In this case, the war on transgender athletes has been completely blown out of proportion to take away the basic dignities of a small portion of athletes, and, more broadly speaking, a small portion of people.

Becky Pepper-Jackson’s own words are the best indicator of why it is so important for access to sports to be available to everyone:

"I just want to run, I come from a family of runners. I know how hurtful a law like this is to all kids like me who just want to play sports with their classmates, and I’m doing this for them. Trans kids deserve better."[13]

Grant Williamson is a graduate of the University of Tennessee College of Law - J.D., Class of 2019. He can be found on Twitter @GrantWilli33

Sources:

[1] Civil Rights Advocates Bring Federal Court Challenge to West Virginia Law Banning Trans Students in School Sports | American Civil Liberties Union (aclu.org) [2] B.P.J. v. West Virginia State Board of Education - Order Granting Preliminary Injunction | American Civil Liberties Union (aclu.org) [3] B.P.J. v. West Virginia State Board of Education - Lambda Legal [4] Intermediate scrutiny is the standard of Constitutional review implemented by the court when a law is alleged to negatively effect certain protected classes. To pass intermediate scrutiny, the law must further an important government interest and do so in a way that is substantially related to that interest. See intermediate scrutiny | Wex | US Law | LII / Legal Information Institute (cornell.edu) [5] B.P.J. v. West Virginia State Board of Education | American Civil Liberties Union (aclu.org) [6] Supreme Court won't enforce West Virginia law banning trans athletes from girls' teams : NPR [7] Id. [8] B.P.J. v. West Virginia State Board of Education | American Civil Liberties Union (aclu.org) [9] Supreme Court won't enforce West Virginia law banning trans athletes from girls' teams : NPR [10] Transgender Identity and Experiences of Violence Victimization, Substance Use, Suicide Risk, and Sexual Risk Behaviors Among High School Students — 19 States and Large Urban School Districts, 2017 | MMWR (cdc.gov) [11] https://assets2.hrc.org/files/assets/resources/PlayToWin-FINAL.pdf [12] Young transgender athletes caught in middle of states' debates (espn.com) [13] Civil Rights Advocates Bring Federal Court Challenge to West Virginia Law Banning Trans Students in School Sports | American Civil Liberties Union (aclu.org)