West Virginia can keep its ban against transgender school athletes, a judge says

CHARLESTON, W.Va. — West Virginia's ban on transgender athletes competing in female school sports is constitutional and can remain in place, a federal judge ruled Thursday.

"I recognize that being transgender is natural and is not a choice," U.S. District Court Judge Joseph Goodwin wrote in his decision. "But one's sex is also natural, and it dictates physical characteristics that are relevant to athletics."

The American Civil Liberties Union and its West Virginia chapter filed the lawsuit in 2021 on behalf of an 11-year-old transgender girl who hoped to compete in middle school cross-country in Harrison County. The lawsuit named the state and county boards of education and their superintendents as defendants.

West Virginia Attorney General Patrick Morrisey applauded the decision Thursday.

"This is not only about simple biology, but fairness for women's sports, plain and simple," the attorney general said. "Opportunities for girls and women on the field are precious and we must safeguard that future."

The ACLU of West Virginia said it was reviewing the decision with co-counsel to determine next steps. The ban applies to middle and high schools, as well as colleges.

The plaintiff's lawsuit did not challenge whether schools should be allowed to have separate sports teams for males and females, and Goodwin was tasked with determining whether the Legislature's definition of the terms "girl" and "woman" is constitutionally permissible. The Save Women's Sports Bill signed by Republican Gov. Jim Justice says they mean anyone assigned the female gender at birth.

"The legislature's definition of 'girl' as being based on 'biological sex' is substantially related to the important government interest of providing equal athletic opportunities for females," Goodwin determined.

The judge also rejected the plaintiff's claim that the state law violated Title IX, the landmark gender equity legislation enacted in 1972.

Goodwin had issued a preliminary injunction in July 2021 temporarily blocking the state ban.

In his Thursday decision, he said the plaintiff, "like all transgender people, deserves respect and the ability to live free from judgment and hatred for simply being who she is." But he did not find sufficient evidence that lawmakers passed the legislation with harmful intent.

Goodwin noted that at the time the measure was passed, there were no widespread reports of transgender girls participating in sports. It was apparent, he said, "that the statute is at best a solution to a potential, but not yet realized 'problem.'"

Had the legislature not done so, there would have been no reason for the court to weigh in on the issue, he continued. "Nevertheless," the judge concluded, "I must do so now."

Transgender athletes' ability to compete in sports is the subject of a continuing national debate. More than a dozen states have passed laws banning or restricting their participation based on the premise that they have an unfair competitive advantage, despite a lack of widespread cases.

The West Virginia Secondary School Activities Commission, which oversees scholastic sports, said in 2021, when the suit was filed, that it had not received any complaints about transgender athletes on girls' teams.

A 2017 study by the Williams Institute at the UCLA School of Law used state-level, population-based surveys to estimate that West Virginia had the highest percentage (1.04%) of residents ages 13 to 17 among all states who identified as transgender. That equated to about 1,150 teens.

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