Supreme Court Rules for Transgender Girl in School Sports Dispute

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 battleground in the culture wars.

The Supreme Court’s brief order, which let stand an appeals court’s temporary injunction, gave no reasons, which is not unusual when the justices rule on emergency applications filed on what critics call the court’s shadow docket.

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 conceptions 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.”

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 B.P.J. in court papers but by her full name on the websites of Lambda Legal and the American Civil Liberties Union, which represent her, has long lived as a girl. Once she started showing signs of male puberty, she started taking puberty-blocking medications.

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 teammates 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 injunction.

Judge Goodwin ultimately ruled against Becky, but it seemed plain that he did so with a heavy heart.

“B.P.J. 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 B.P.J.’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 sports.

“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.”

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 U.S. 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.

Lawyers for the state asked the Supreme Court to step in. “Nothing warrants the Fourth Circuit majority’s radical approach, and this court should vacate its unreasoned and incorrect injunction,” the state’s brief said. “Complete 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.