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Trans runner Becky Pepper-Jackson can stay on West Virginia team

A transgender West Virginia middle school student cannot be barred from participating in cross-country racing and track and field with other girls, the 4th U.S. Circuit Court of Appeals ruled Tuesday.

The move comes amid a nationwide backlash against trans rights, fueled largely by claims that trans women are unfairly dominating women’s sports and that children are being allowed to transition too young . These fears have been used to justify bans on medical treatment, use of popular pronouns, and access to public facilities for transgender children and adults. But the U.S. Court of Appeals for the 4th Circuit said general policy disagreements were irrelevant to the specific reality of 13-year-old Becky Pepper-Jackson in Bridgeport, Virginia.

Now in eighth grade, Pepper-Jackson has identified as female for five years, nearly half her life, the court noted. Since elementary school, she has only participated in girls’ sports. She has a birth certificate that identifies her as a woman. And she takes medication to block male puberty and undergo female puberty, which the court said was key to its decision.

Pepper-Jackson “never experienced the effects of increased circulating testosterone levels,” so “the fact that those who do benefit from increased strength and speed provides no justification—let alone a substantial one.” – to exclude him from the girls’ crossing. country and track and field teams,” the judges wrote. Forcing her to play on a boys’ team or not play at all “would expose her to the same risk of unfair competition – and, in some sports, the same physical danger – from which defendants claim to protect cisgender girls.” the court said she would “share the field with boys who are bigger, stronger and faster than her due to the high levels of circulating testosterone she lacks.”

Forcing him to do that violates federal civil rights law, the court said. This does not mean that “we do not consider government officials prohibited from creating separate sports teams for boys and girls or that they do not have the power to control the line drawn between these teams.” , added the judges. Nor does it mean that federal law “requires schools to allow all transgender girls to play on girls’ teams, regardless of whether they have reached puberty and experienced high levels of circulating testosterone.” Only in the “special case” of Pepper-Jackson is the ban discriminatory, he said.

Tuesday’s ruling was written by Justice Toby J. Heytens, a Biden appointee, and joined by Justice Pamela Harris, an Obama appointee. Justice G. Steven Agee, a George W. Bush appointee, disagreed and said he “hopes the Supreme Court will seize the opportunity with all due speed to resolve these issues of national importance.”

The conservative Christian group Alliance Defending Freedom, which supported this law and others restricting trans rights, said an appeal could be filed. The decision “undermines equality of opportunity and contradicts both biological reality and common sense,” said legal advisor Rachel Rouleau.

It’s unclear what the Supreme Court might do, despite its conservative orientation. On Monday, the high court allowed Idaho to impose a criminal ban on gender-affirming medical treatments for trans minors. But the court also refused last year to let the West Virginia law stand while it was being challenged in the 4th Circuit.

The 4th Circuit – which also handles appeals from federal courts in Maryland, Virginia, North Carolina and South Carolina – was once the most conservative appeals court in the country; he is now a pioneer in the field of trans rights. It was the first appeals court to recognize a trans student’s right to use the restroom that reflected their gender, a decision the Supreme Court left in place. It was also the first to label gender dysphoria, or a mismatch between a person’s sex and their assigned sex, a disability protected under federal law. The court is also considering whether state health plans must cover gender-affirming treatments.

Joshua Block of the ACLU, who represented Pepper-Jackson, said the case was part “of a series of federal courts ruling against banning the participation of transgender athletes and in favor of their equal participation based on of the sex they know they are.” Courts from Arizona to Connecticut have sided with transgender students. Although some of those decisions have been stayed on appeal, he said, no appeals court has ruled against trans athletes on the merits.

While a majority of Americans support laws protecting trans rights in schools and elsewhere, according to a 2023 Washington Post-KFF poll, most also believe trans women and girls should not be allowed to participate in sports competitions with other women and girls and that gender is an issue. determined at birth. Republicans have seized on these fissures, supporting state and federal laws that limit trans rights. Although there was national outrage in 2016 when North Carolina banned trans people from using the bathroom corresponding to their gender identity, the state’s recent legislation targeting trans minors has only sparked few reactions.

Since 2020, about half of U.S. states have passed measures banning transgender girls and women – and sometimes boys and men – from participating in publicly funded school sports in the categories corresponding to their gender identity. West Virginia passed its law in 2021, stating that students “whose biological sex determined at birth to be male” cannot compete on women’s teams.

Trans advocates say the issue of who should play women’s sports, while politically heated, is disproportionate. In Kentucky, a state law similar to West Virginia’s only affected one student-athlete. Competitive sports leagues have their own rules regarding trans athletes.

When she first filed a lawsuit against the ban, Pepper-Jackson said she “regularly finished at the back of the pack” in track and field. At the time the decision was made, she was placing higher in some events while remaining behind in others. Agee argued that these results demonstrated a biological advantage and an injustice. “The biological girls participating in these events were displaced and deprived of athletic opportunities because of” Pepper-Jackson, he wrote.

The majority agreed with Pepper-Jackson that just because she was ahead of another girl in competition didn’t mean she had a biological advantage. There are few studies on transgender performance and how many years of hormone treatment are required to remove the physiological advantages of transgender athletes who have gone through male puberty. But the court noted that the science is undisputed: Only after male puberty do these benefits develop.

The Biden administration proposed rules that would allow federally funded schools to exclude trans students from playing sports only if the decision was justified based on the sport involved, the age of the students and the level of competitiveness . These rules, once published, could change how courts analyze similar cases in the future, Block said.

Pepper-Jackson also challenged the state law under the equal protection clause of the 14th Amendment. But the justices said the factual record was not developed enough to argue that West Virginia had no “significant state interest” in keeping Pepper-Jackson off the team — a defense that does not exist under federal civil rights law.

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