WASHINGTON — The Supreme Court ruled on Thursday that a transgender girl may compete on the girls’ cross country and track teams at her middle school in West Virginia while her appeal moved forward, signaling that a majority of the justices are not ready to enter another battle in the culture wars.
The Supreme Court’s brief order, which let stand an appeals court’s temporary injury, gave no reasons, which is not unusual when the justices rule on emergency applications filed on what critics call the court’s shadow dock.
Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, issued a dissenting opinion indicating that states are entitled to enact laws “restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.”
The case, involving conflicting concepts of inclusiveness and fairness in sports, arose from a 2021 law in West Virginia that barred boys from competing on girls’ teams in public schools. The law made distinctions based on what it called “biological sex,” which it defined as “an individual’s physical form as a male or female based solely on the individual’s reproductive biology and genetics at birth.”
The law is part of an escalating wave of state legislation limiting the rights of transgender people. According to the American Civil Liberties Union, 19 states have enforced measures restricting transgender athletes in the past three years. Under a rule change to Title IX the proposal Biden administration on Thursday, schools would not be able to “categorically” ban transgender athletes.
Patrick Morrisey, West Virginia’s attorney general, a Republican, said he was disappointed by the Supreme Court’s order but viewed it as a temporary setback.
“We remain confident that when this case is ultimately determined on the merits, we will prevail,” he said in a statement, adding: “It’s just basic fairness and common sense to not have biological males play in women’s sports.”
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Lawyers for Becky Pepper-Jackson, then an 11-year-old preparing to enter the sixth grade, sued soon after the law came into effect, saying it discriminated against transgender girls. Becky, identified as BPJ in court papers but by her full name on the websites of Lambda Legal and the ACLU, which represent her, has long lived as a girl. Once she started showing signs of male puberty, she started taking puberty-blocking medications.
In a statement on Thursday, Becky’s lawyers welcomed the Supreme Court’s action. “This was a baseless and cruel effort to keep Becky from where she belongs — playing alongside her peers as a teammate and as a friend,” the statement said.
Judge Joseph R. Goodwin, of the Federal District Court in Charleston, W. Va., initially sided with Becky, issuing a preliminary injunction allowing her to compete for more than a year and a half as the case moved forward.
Becky’s coaches and teams supported her participation, her lawyers wrote in a Supreme Court brief, and children on other teams did not object. “Despite regularly finishing near the back of the pack, she loves to play, have fun with her friends and try her best,” the brief said.
State officials did not appeal the preliminary injury.
Judge Goodwin ultimately ruled against Becky, but it seemed plain that he did so with a heavy heart.
“BPJ is a 12-year-old transgender girl in middle school, often considered a memorable and pivotal time in a child’s life,” Judge Goodwin wrote in February in turning down a request for a stay of his ruling against Becky while her lawyers appealed , saying it was “a novel and difficult case.”
He wrote that “not one child has been or is likely to be harmed by BPJ’s continued participation on her middle school’s cross country and track teams.”
Larger principles were also on Becky’s side, Judge Goodwin wrote. “There is a public interest,” he wrote, “in celebrating not only the unique differences of those who fit into society’s binary world but also those who fall outside that box.”
Judge Goodwin nonetheless ruled that the state law did not run afoul of the Constitution or a federal law barring sex discrimination in education. As a general matter, the judge wrote, students whose sex assigned at birth was male have an advantage in competitive.
“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,” he wrote, adding, “I do not see how I could find that the state’s classification based on biological sex is not substantially related to its interest in providing equal athletic opportunities for females.”
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He said the state was free to adopt a more inclusive policy but was entitled to choose the restrictive one in the 2021 law.
A divided three-judge panel of the US Court of Appeals for the Fourth Circuit, in Richmond, Va., issued a one-sentence order allowing Becky to continue to compete while an appeal moved forward. The spring track-and-field season began in February.
In dissent on Thursday, Justice Alito wrote that “enforcement of the law at issue should not be forbidden by the federal courts without any explanation.”
At the same time, he was critical of the state’s failure to appeal Judge Goodwin’s initial injury. Justice Alito noted that in general “a litigant whose claim of urgency is believed by its own conduct should not expect discretionary emergency relief from a court.”
“But in the circumstances present here — where a divided panel of a lower court has joined a duly enacted state law on an important subject without a word of explanation, notwithstanding that the district court granted summary judgment to the state based on a fact-intensive record — the state is entitled to relief,” Justice Alito wrote.
In their Supreme Court brief, lawyers for the state wrote that the appeals court had made a grave error. “Nothing warrants the Fourth Circuit majority’s radical approach, and this court should vacate its unreasoned and incorrect injury,” the state’s Comp brief te said. The lack of analysis is the first tell that something is amiss, as federal courts should not enjoin democratically passed legislation without at least providing a rationale.”
The brief went on: “If the injunction below stands, sex-separated sports as they are traditionally understood will be functionally illegal in West Virginia public schools and universities.”
Becky’s lawyers wrote that they were puzzled by that statement, as they were not aware of any transgender student seeking to play school sports in West Virginia other than her.