Appeals court allows transgender girl to stay on West Virginia track team

Judge gavel and rainbow ribbon of LGBT pride on gray background.
(Photo: Adobe Stock)

In a ruling that highlights the value and impact of gender-affirming care for trans youth early in the transition process, the U.S. Court of Appeals for the 4th Circuit ruled April 16 in B.P.J. v. West Virginia State Board of Education that Becky Pepper-Jackson, a 13-year-old transgender middle-school student in West Virginia, cannot be barred from cross-country running and track with other girls.

Pepper-Jackson has identified as female since she was eight and has been on puberty blockers that prevented male puberty and accelerated female puberty, according to court documents. This factor was critical to Pepper-Jackson’s case as the key assertion with regard to trans women in women’s sports is that trans women would have unfair advantage due to their testosterone levels and secondary sex characteristics.

The court said that Pepper-Jackson, now an eighth grader, has only participated in girls’ sports and her birth certificate identifies her as female. But since she also takes puberty blockers, it was crucial to the court’s decision.

The April 16 decision was written by Judge Toby J. Heytens, a Biden appointee, and joined by Judge Pamela Harris, an Obama appointee. The judges wrote: “Pepper-Jackson has never felt the effects of increased levels of circulating testosterone,” so “the fact that those who do benefit from increased strength and speed provides no justification — much less a substantial one — for excluding [her] from the girls cross country and track teams.”

The judges wrote: “To force her to play on a boys’ team or not play at all would expose [her] to the same risk of unfair competition — and, in some sports, physical danger — from which the defendants claim to be shielding cisgender girls.”

The court also said that since Pepper-Jackson would be “sharing the field with boys who are larger, stronger, and faster than her because of the elevated levels of circulating testosterone she lacks” she could be at physical risk if forced to play on boys teams with boys. In addition, the court stated that forcing Pepper-Jackson to play on male teams would violate federal civil rights law.

“We do not hold that government officials are forbidden from creating separate sports teams for boys and girls or that they lack power to police the line drawn between those teams,” the judges added, but also said that this interpretation does not mean that federal law “requires schools to allow every transgender girl to play on girls teams, regardless of whether they have gone through puberty and experienced elevated levels of circulating testosterone.” Only in Pepper-Jackson’s “particular case” is the ban discriminatory, the court said, suggesting that more cases will be determined individually in the future.

Judge Heytens wrote, “Offering B.P.J. a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all. The defendants cannot expect that B.P.J. will countermand her social transition, her medical treatment, and all the work she has done with her schools, teachers and coaches for nearly half her life by introducing herself to teammates, coaches and even opponents as a boy.”

Judge G. Steven Agee, an appointee of George W. Bush, dissented and said he “hope[d] that the Supreme Court will take the opportunity with all deliberate speed to resolve these questions of national importance.”

The Christian conservative group Alliance Defending Freedom, which backed this law and others restricting trans rights, indicated that an appeal may be coming. The ruling “undermines equal opportunities and contradicts both biological reality and common sense,” legal counsel Rachel Rouleau said.

“This is a tremendous victory for our client, transgender West Virginians, and the freedom of all youth to play as who they are,” said Joshua Block, Senior Staff Attorney for the ACLU’s LGBTQ & HIV Project. “It also continues a string of federal courts ruling against bans on the participation of transgender athletes and in favor of their equal participation as the gender they know themselves to be. This case is fundamentally about the equality of transgender youth in our schools and our communities and we’re thankful the Fourth Circuit agreed.”

“As the Fourth Circuit made clear in this ruling, West Virginia’s effort to ban one 13-year-old transgender girl from joining her teammates on the middle school cross country and track team was singling out Becky for disparate treatment because of her sex,” Lambda Legal Staff Attorney for Youth Sruti Swaminathan said. “That’s discrimination pure and simple, and we applaud the court for arriving at this just decision.”

Aubrey Sparks, Legal Director of the ACLU of West Virginia, said, “We hope today’s ruling sends a message of hope to the trans youth of West Virginia, and a message of warning to politicians who continue to dehumanize this vulnerable population.”

Kathleen Hartnett of Cooley LLP, who also worked on the case said,“We are extremely gratified — for Becky, and for all trans youth — at the court’s recognition that the law and the facts clearly support treating people who are transgender fairly and equally. Discrimination has no place in schools or anywhere else.”

In April 2021, West Virginia Republican Governor Jim Justice signed HB 3293 into law, barring transgender student-athletes from participating on the school athletic teams most consistent with their gender identity. In May 2021, the American Civil Liberties Union, the ACLU of West Virginia, and Lambda Legal filed a lawsuit challenging the law on behalf of Pepper-Jackson, then 12, who would have been removed from her middle school’s track and field team if the law were enforced.

In February 2023, the U.S. Court of Appeals for the Fourth Circuit blocked the state’s effort to kick Pepper-Jackson off the team as the legal advocates appealed a lower court ruling upholding the 2021 ban.

In a March 9, 2023 filing, Attorney General Patrick Morrissey asked the Supreme Court for an emergency motion allowing the state to enforce HB 3293 and remove Pepper-Jackson from her middle school’s track and field team. The Court rejected this first attempt in April 2023. The ACLU states that West Virginia is one of 21 states that have banned transgender student-athletes in just the last three years as part of an escalating wave of state-level restrictions on the rights of transgender people. A similar federal lawsuit is pending in Idaho.

Newsletter Sign-up