West Virginia Seeks Supreme Court Action on Transgender Middle School Athlete Issue

West Virginia Attorney General Patrick Morrisey announced on Wednesday he will ask the Supreme Court to step in after a federal appeals court found a state law violated the rights of a transgender middle school track and field runner.

Morrisey, who was standing alongside activist and former swimming athlete Riley Gaines when he announced the move, said he would file a cert petition to the nine justices as soon as next week. His decision comes days after the Biden administration finalized its controversial federal Title IX rule to expand the definition of sex to include transgender identities.

“Today is a great day, and we’re making a major announcement. We are going to go to the U.S. Supreme Court to overturn [a lower court’s] challenge to the Save Women’s Sports Act,” Morrisey said.

Earlier this month, a three-judge panel on the U.S. Court of Appeals for the 4th Circuit ruled against West Virginia in a case that sought to uphold its law that prevents athletes of opposite sexes from competing against one another.

The appeals panel did not overturn West Virginia’s law, but the majority found it unfairly discriminated against Becky Pepper-Jackson under Title IX, which has historically been in place to block sex-based discrimination in any school or education program that receives federal funds.

Activists such as Gaines contend that allowing a biological male who identifies as a female to compete against other females is its own form of sex discrimination and will lead to disastrous consequences for female athletes.

In a dissent accompanying the court’s opinion, Judge G. Steven Agee said that the 4th Circuit’s opinion “turns Title IX on its head and reverses the monumental work Title IX has done to promote girls’ sports from its inception.”

West Virginia has so far seen some setbacks in attempting to have its law upheld by the courts.

Last April, the justices declined to act on a separate petition by West Virginia regarding a federal appeals court order that made it possible for Pepper-Jackson to remain on the school’s girls’ track and cross-country team.

Morrisey said that even counsel for Pepper-Jackson, who has the backing of the American Civil Liberties Union, has argued that there is a place for gender and sex separation in sports.

“We believe we have a strong case on the merits,” Morrisey said, noting that two justices have previously said they would take up the case.

“We’re confident that now that we’re further along procedurally, that the other justices will agree,” adding that “we’re seeing immediate harm to girls” in sports.

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The case began after the ACLU initially sued West Virginia over its 2021 law. As the case progressed, the conservative firm Alliance Defending Freedom intervened on behalf of a West Virginia State University soccer player, Lainey Armistead.

The Washington Examiner contacted the ACLU for comment.