The U.S. Supreme Court denied an emergency request from West Virginia on Thursday, allowing a 12-year-old “transgender girl” to participate in his middle school’s girls’ sports team while litigation over the state’s ban continues.
In a one-sentence order, the justices denied West Virginia’s emergency request to lift an appeals court injunction that allows transgender athletes to compete in sports that align with their identified gender.
West Virginia Attorney General Patrick Morrisey called the Court’s decision a “procedural setback,” but remained hopeful that the state’s Save Women’s Sports Act would ultimately be upheld.
“This is a procedural setback, but we remain confident that when this case is ultimately determined on the merits, we will prevail,” Morrisey said in a statement. “We maintain our stance that this is a common sense law—we have a very strong case. It’s just basic fairness and common sense to not have biological males play in women’s sports.”
West Virginia’s Save Women’s Sports Act was enacted in April 2021, prohibiting transgender women from competing on female sports teams.
Becky Pepper-Jackson, a now-12-year-old transgender girl identified as B.P.J. in court filings, sued the state, alleging the law violated the 14th Amendment’s Equal Protection Clause and Title IX.
U.S. District Judge Joseph Goodwin allowed Pepper-Jackson to compete on the middle school girls’ cross-country and track teams for months before ultimately ruling against him and upholding the law in January.
After that ruling, Pepper-Jackson appealed Goodwin’s decision to the U.S. Court of Appeals for the Fourth Circuit through his mother, Heather Jackson, who served as his counsel.
A divided Fourth Circuit panel put Goodwin’s order preventing Pepper-Jackson from competing with girls on hold while the appeal is pending. This decision prompted Morrisey to seek an emergency appeal from the Supreme Court.
Supreme Court Justice Samuel Alito, in an opinion joined by Justice Clarence Thomas, said he would have allowed West Virginia to enforce the Save Women’s Sports Act.
“I would grant the State’s application. Among other things, enforcement of the law at issue should not be forbidden by the federal courts without any explanation,” Alito wrote.
“If we put aside the issue of the State’s delay in seeking emergency relief and if the District Court’s analysis of the merits of this case is correct, the generally applicable stay factors plainly justify granting West Virginia’s application,” he continued.
Alito noted the court is “likely to be required to address” the issue of whether prohibitions on transgender athletes are lawful under Title IX or the Fourteenth Amendment “in the near future.”
The Fourth Circuit appeals panel is not set to hear Pepper-Jackson’s appeal, and the case could ultimately return to the Supreme Court.
The case is West Virginia v. B.J.P., No. 22A800 in the Supreme Court of the United States.