The Supreme Court denies West Virginia’s motion to enforce an anti-transportation ban on cross-country and track and field athletes

WASHINGTON (CNN) – The Supreme Court on Thursday denied West Virginia’s request to fully enforce a state law banning transgender women and girls from participating in public school athletic teams based on their gender identity.

In an unsigned order, the court denied West Virginia Attorney General Patrick Morrisey’s emergency motion to let the state enforce the 2021 law. Justices Samuel Alito and Clarence Thomas disagreed and said they granted the motion.

Earlier this year, a lower federal court ordered the state to temporarily lift the ban against Becky Pepper-Jackson, a 12-year-old transgender girl who sued the state over the law shortly after it was passed.

Pepper-Jackson was able to compete on her middle school’s cross-country and track teams due to the lower court injunction, and the Supreme Court’s decision to deny the emergency petition means she can continue to do so.

Although the law has been in effect since 2021, Pepper-Jackson’s attorneys said in recent court filings that the state is “not aware of any transgender student who wishes to play school sports in West Virginia, except” her.

The court took an unusually long time to respond to the request, which was made almost a month ago.

In his two-sided disagreement, Alito noted that the matter could soon come before the judiciary.

“This motion addresses an important question that this Court is likely to have to consider in the near future, namely whether either Title IX of the Education Amendments of 1972 … or the Equal Protections Clause of the Fourteenth Amendment prohibits a state from restricting participation in women’s or girls’ sports on the based on genes or physiological or anatomical traits,” he wrote.

Alito also wrote, “Among other things, enforcement of the law in question should not be prohibited without explanation by the federal courts.”

First time in court

West Virginia’s application to the Supreme Court is the first time the sports issue has reached the Supreme Court. Measures like HB 3293 have gained significant momentum in GOP-led states in recent years, with more than a dozen states having enacted similar bans since 2020.

Two years ago, judges stayed out of a dispute over whether a trans student could use their gender-appropriate bathroom. Still, in a 6-3 decision a year earlier, the court expanded job protections for gay, lesbian and transgender workers and handed LGBTQ Americans a decisive victory.

West Virginia law states that athletic teams in “all public secondary schools or state colleges must be determined on the basis of “biological sex,” thereby prohibiting trans women and girls from participating in women’s athletic teams “where competitive ability or contact is involved.” goes .”

“This court should lift the Fourth Circuit’s injunction and allow the law to continue protecting West Virginia student-athletes this spring and beyond,” said Morrisey and attorneys for the Alliance Defending Freedom, which is representing a former college athlete , who intervened in the case on behalf of West Virginia, wrote to the court in her emergency motion last month.

“This case implies a question that is full of emotions and different perspectives. That’s all the more reason to turn to state legislatures pending an appeal,” the attorneys said in court. “The decision rested with the West Virginia Legislature. The end of this litigation will confirm that it was valid.”

But attorneys for Pepper-Jackson argued in court filings that the state’s claim that he was harmed by the appeals court’s injunction against the law was unfounded.

“In short, the motion falls nowhere near the kind of urgent and compelling circumstances required for an extraordinary appeal from this court,” they wrote. “There is no basis for this court to ban BPJ from the field, where she has spent her entire middle school career and where her presence does no harm to anyone.”

Several briefs were filed with the Supreme Court by friends of the court in support of West Virginia’s request, one of which was signed by a number of famous athletes, including tennis player Martina Navratilova and Olympic champions Summer Sanders and Donna de Varona.

“By bringing their names, their voices and their personal stories to this court, Amici hope to highlight the plea of ​​women and girls across the country: that this court affirm their continuing right to equal opportunity and set in granite that women can.” are not clearly and specifically discriminated against because of their biological sex,” the athletes’ lawyers wrote in the brief.

In addition to West Virginia, a number of other Republican-controlled states have enacted similar sports bans, with at least eight adding one to their books in 2022 alone. In promoting such action, conservatives have argued that transgender women and girls have physical advantages over cisgender women and girls in sport, although a 2017 report found “no direct or consistent research” on such an advantage.

This story has been updated with additional details.