A new West Virginia law is prohibiting an 11-year-old girl in Bridgeport from trying out for her school’s cross-country team solely because she is transgender, according to a lawsuit filed by her mother Wednesday.
The lawsuit is the first to challenge the state’s ban on transgender girls and women from participating in public school-sanctioned sports that align with their gender identity.
The West Virginia Legislature adopted the bill on April 9, and Gov. Jim Justice signed it into law on April 28.
The lawsuit makes good on a notice that the American Civil Liberties Union-West Virginia gave the same day Justice signed the bill. A tweet from the organization’s Twitter account said, “We will see West Virginia in court.”
Attorney General Patrick Morrisey wrote a Facebook post on April 11 indicating that staff members in his office were preparing for litigation to defend new state laws, including the transgender athlete ban.
ACLU-WV and the national ACLU, Lambda Legal and Cooley LLP, an international private law firm, are representing the girl, Becky Pepper-Jackson and her mother, Heather Jackson, according to a news release from the ACLU-WV.
Jackson wants a federal judge to issue an injunction to prevent athletics and education officials from enforcing the law, as well as any punitive damages the court sees fit.
In August 2020, a federal judge in Idaho granted an injunction preventing a similar law in that state from taking effect until its constitutionality is determined.
Jackson said the transgender athlete ban is a violation of Title IX and denies Pepper-Jackson equal protection under the 14th Amendment because it is applied only to girls’ and women’s sports, not sports for boys and men.
“I just want to run, I come from a family of runners,” Pepper-Jackson said in the news release. “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.”
Pepper-Jackson is identified by her initials in the complaint filed in U.S. District Court in Southern West Virginia, and she is referred to by her full name in the ACLU-WV news release.
Pepper-Jackson has participated in youth sports outside the Harrison County Schools district as a cheerleader in a local youth football league.
Under the new state law, she can’t try out for Bridgeport Middle School’s cross-country team in the fall or participate in the team’s practices, which begin in July, leading up to try-outs, according to the lawsuit.
The principal of Bridgeport Middle School told Pepper-Jackson she would not be permitted to join the girls’ cross-country or track teams in the fall because of the transgender athlete ban for girls, which was House Bill 3293 during the 2021 legislative session.
Pepper-Jackson was diagnosed with gender dysphoria in 2019 and has been undergoing puberty-delaying medical treatment since June 2020, according to the lawsuit.
Between cheerleading and running with her family, Pepper-Jackson was eager to continue participating in sports to enjoy the “camaraderie of being on a team of girls with her friends and working together as a team to succeed.”
“Now, just like any other middle school student, B.P.J. wants the chance to explore her athletic interests and try out for the teams that interest her,” attorneys wrote in the complaint.
The defendants in the lawsuit are the West Virginia Board of Education, Harrison County Board of Education, the West Virginia Secondary School Activities Commission, state schools Superintendent Clayton Burch and Harrison County Schools Superintendent Dora Stutler.
The law that was HB 3293 during the legislative session prevents transgender girls and women from participating in sports through public schools from kindergarten through college. The law requires West Virginia’s student-athletes to participate in the sport that corresponds with their sex at birth.
In the law that’s being challenged, the Legislature required the state Board of Education to establish standards and practices to enforce the ban. The law does not ask the board to make or enforce similar standards and practices for boys’ and men’s sports.
The lawsuit quotes Gov. Jim Justice as not being able to provide an example of a transgender student-athlete in West Virginia who has tried to get an unfair advantage in sports.
“I think we only have 12 kids maybe in our state that are transgender-type kids. I mean, for crying out loud, ... I sign hundreds of bills, hundreds of bills. This is not a priority to me,” Justice is quoted from his April 30 COVID-19 news briefing.
The lawsuit also refers back to the legislative process, noting that a West Virginia Department of Education official said her office had never received any calls or complaints about transgender students participating in athletics.
Attorneys who filed the lawsuit also referred to House Education Chairman Joe Ellington, R-Mercer, who said he also didn’t know of any complaints regarding transgender student-athletes in West Virginia.
Delegate Margitta Mazzocchi, R-Logan, is quoted in the lawsuit as saying she did not “want all this mixing and matching” of “transgender children” with nontransgender children in “locker rooms,” during debate about HB 3293 in March.
The case has been assigned to U.S. District Judge Joseph Goodwin.