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Transgender Teen in WV Can Play on Track Team, Federal Appeals Court Says

“This is a massive victory for trans rights,” LGBTQ legislative researcher Allison Chapman told Truthout.

Rebekah Bruesehoff, a transgender student athlete, speaks at a press conference on LGBTQI+ rights, at the U.S. Capitol on March 08, 2023 in Washington, DC.

A federal appeals court will allow a West Virginia teen to participate on her school’s sports team, despite a law on the books prohibiting transgender student athletes from playing on teams consistent with their gender identity.

“Trans student athletes belong on the team with their peers and I’m thrilled that the 4th Circuit has ruled in their favor,” LGBTQ legislative researcher Allison Chapman told Truthout. “Student athletics is such an important part for many growing up and trans kids deserve an equal opportunity to do so with their cisgender peers. This is a massive victory for trans rights and I hope we continue to see major wins similar to this.”

The Fourth Circuit Court of Appeals, which covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina, held in a 2-1 ruling on Tuesday that the transgender sports ban law violated the rights of a transgender student whose ability to participate on her school’s cross country and track teams was protected under Title IX.

“This is a tremendous victory for our client, transgender West Virginians, and the freedom of all youth to play as who they are,” said Joshua Block, Senior Staff Attorney for the ACLU’s LGBTQ & HIV Project. “It also continues a string of federal courts ruling against bans on the participation of transgender athletes and in favor of their equal participation as the gender they know themselves to be. This case is fundamentally about the equality of transgender youth in our schools and our communities and we’re thankful the Fourth Circuit agreed.”

In April 2021, West Virginia Gov. Jim Justice (R) enacted HB 3293 into law, which prohibits transgender student athletes from joining school sports teams that align with their gender identity. The law was immediately challenged by the American Civil Liberties Union, the ACLU of West Virginia, and Lambda Legal on behalf of Becky Pepper-Jackson (B.P.J.), a transgender girl who said that the law barred her from participating in the girls’ cross-country and track teams at her middle school.

“[O]ffering B.P.J. a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all,” Judge Toby Heytens wrote in the decision. “The defendants cannot expect that B.P.J. will countermand her social transition, her medical treatment, and all the work she has done with her schools, teachers, and coaches for nearly half her life by introducing herself to teammates, coaches, and even opponents as a boy.”

Attorney General Patrick Morrisey (R) has vowed to challenge the ruling and has said that the ruling should be interpreted narrowly to be read as only allowing Becky herself to participate in school athletic teams, not all transgender youth in the state.

“It’s supposed to apply to the specific student. Obviously, there will be a lot of people if they are similarly situated, they may cite that or decide to go to court,” Morrisey said.

According to the Movement Advancement Project (MAP), West Virginia is one of 24 states that currently ban transgender students from participating in sport teams consistent with their gender identity and also one of 23 states that ban transgender youth from accessing gender-affirming care. Additionally, according to the ACLU, 484 anti-LGBTQ bills have been introduced across the country this legislative session — of those, 27 were introduced in West Virginia.

“Banning trans athletes from sports only adds difficulties for an already marginalized group and does nothing to enhance safety or fairness,” Ash Orr, a transgender activist from West Virginia, told Truthout. “Trans, nonbinary, and intersex students participate in sports for the same reasons as others — to develop skills, forge relationships, and enjoy themselves. All women and girls, including those who are trans, nonbinary, and intersex, deserve the chance to compete and benefit from sports. This ruling affirms that Becky and other trans athletes can enjoy these opportunities.”

A 2017 study estimated that West Virginia had the highest percentage of transgender youth in the country. A later study found that the number of gender-diverse youth in rural Appalachia exceeded earlier estimates and that more than 7 percent of young people surveyed had a gender identity that did not align with the sex they were assigned at birth. Anti-LGBTQ laws like sports bans have been found to negatively impact this population’s mental health.

“We hope today’s ruling sends a message of hope to the trans youth of West Virginia, and a message of warning to politicians who continue to dehumanize this vulnerable population,” Aubrey Sparks, Legal Director of the ACLU of West Virginia, said in a statement.

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