State and county education and athletic officials in West Virginia say they can’t be held liable for an anti-transgender law they didn’t ask for and largely won’t be responsible for enforcing, according to court documents filed last week.
Less than a week before West Virginia’s athletics ban against transgender girls takes effect, attorneys for the West Virginia Board of Education, the Harrison County Board of Education and the West Virginia Secondary School Activities Commission filed respective motions to dismiss a case brought by an 11-year-old Harrison County girl, who is transgender, and her mom in May.
Becky Pepper-Jackson, and her mother, Heather Jackson, filed a lawsuit against the state Board of Education, the Harrison County Board of Education, and the Secondary School Activities Commission in May, after a school administrator said the law would prevent Pepper-Jackson from trying out for her school’s cross-country team for the 2021-22 school year.
Pepper-Jackson is seeking an injunction to prevent the law from being enforced and any financial damages that U.S. District Judge Joseph Goodwin deems fit.
Pepper-Jackson is referred to by her initials, B.P.J., in court documents, but she was referred to by her full name in a May news release from the American Civil Liberties Union of West Virginia, part of her legal team.
The law, set to take effect Thursday, will require the state Board of Education to establish rules to determine the means by which local athletic officials can enforce the law.
The new law prevents transgender girls and women from participating in sports in public schools from kindergarten through college. It requires student-athletes who want to participate to do so on teams comprised of members who correspond with their sex at birth.
The law doesn’t have similar provisions for boys’ and men’s sports or co-ed sports.
In their respective motions to dismiss, the state Board of Education and the SSAC said they aren’t the ones who will enforce the law. Instead, that will go to local officials, they said.
In addition to the education and athletic entities, Harrison schools Superintendent Dora Stutler and state schools Superintendent Clayton Burch are named as defendants in the case and, likewise, are asking Goodwin to dismiss the case.
The state board noted that the West Virginia Legislature provided it only with the task of establishing the rules to enforce the ban. The board’s attorneys said it is “important to note” that no representatives from the board, or Burch, requested a transgender athlete ban and did not participate in drafting House Bill 3293, which Gov. Jim Justice signed into law on April 28.
“WVBOE in no way participated in the enactment of [the law],” attorneys wrote in a memo supporting the boards’ motion to dismiss the case. “Instead, WVBOE only answered specific questions posed to it during House of Delegates Education Committee meetings and hearings.”
The SSAC said there is no mention of the commission in the law, in terms of making or enforcing any rules related to the transgender athlete ban.
The attorneys also noted that the SSAC does not have regulations that categorically ban transgender athletes nor does the commission’s enrollment paperwork (physical exam) ask athletes to select or identify themselves by gender.
“WVSSAC is not mandated to determine the appropriate team for B.P.J. but will only receive the rosters for cross-country with her name in place,” the commission’s attorneys wrote in their memo. “That is, WVSSAC will not drive outcome, will not determine the solution, and is not identified or called upon in H.B. 3293 to do anything whatsoever.”
Attorneys for the SSAC and the state board say Harrison County Schools officials will be responsible for enforcing the law.
In their motion, attorneys for Harrison County Schools said the district “was not responsible for and did not pass” the transgender athlete ban, arguing that the board has not caused Pepper-Jackson harm.
Instead, the Harrison board’s attorneys said that to order an injunction would affect student athletes only in Harrison County and not those throughout the state, noting that Harrison County Schools does not have a policy banning transgender athletes from participating on athletic teams in alignment with their gender identity.
“Like B.P.J., the County Board is affected by the Act, not the other way around,” they said in court documents. “[The law] was not created by the County Board, and it is not under the County Board’s control. In the end, even if the Act were to be found unlawful or unconstitutional, the County Board could not be liable to Plaintiff because it did not cause B.P.J. any harm. The County Board is simply tasked with enforcing state law; it has no policy or custom that would exclude B.P.J. from participating on girls’ sports teams solely due to transgender status.”
In June, the U.S. Department of Justice intervened in the case, filing a statement saying West Virginia’s law “hinders equal athletic opportunities for girls by creating an additional hurdle for participation” and discriminates against West Virginia student-athletes on the basis of sex and gender identification.
The department’s statement said West Virginia lawmakers “cannot point to any valid evidence that allowing transgender girls to participate on girls’ sports teams endangers girls’ athletic opportunities,” and lawmakers legislated based on “misconceptions and overbroad assumptions about transgender girls.”
A federal judge in Idaho granted an injunction stopping a similar law from taking effect in that state in August 2020.
Attorneys representing West Virginia Attorney General Patrick Morrisey also filed to intervene in the case in June.