- The Washington Times - Monday, March 20, 2023

Attorneys for a 12-year-old biological male who competes on a girls’ track team asked the Supreme Court Monday to keep on hold West Virginia’s Save Women’s Sports Act, dismissing the state’s request for an emergency ruling as an overreaction.

The student, identified by the American Civil Liberties Union as Becky Pepper-Jackson, has participated on the girls’ track-and-field team since enrolling at Bridgeport Middle School under a July 2021 preliminary injunction implemented shortly after the law was passed.

West Virginia Attorney General Patrick Morrisey filed an emergency motion earlier this month urging the high court to lift the injunction, but the ACLU described the filing as an “emergency application in search of an emergency.”

“Applicants now claim that what has been the status quo for over a year and a half has suddenly become an emergency requiring this Court’s immediate intervention,” said the 41-page brief. “There is no emergency, and the only harm at stake is the harm to B.P.J. that would result from barring her from her team.”

Nineteen states have banned male-born athletes from competing in female sports based on gender identity in a debate pitting fairness against inclusion, but the 2021 West Virginia law is the first to reach the Supreme Court.

West Virginia was also the first state to receive a ruling on its law from a federal judge. U.S. District Judge Joseph R. Goodwin upheld in January the state’s measure, saying that the West Virginia Legislature was within its right to define sex for purposes of scholastic sports. 

SEE ALSO: Federal judge hands defeat to transgender athletes by upholding West Virginia’s female sports law

Goodwin, a Clinton appointee, also denied a motion to stay his decision pending appeal, but the Fourth Circuit Court of Appeals granted the temporary injunction last month, allowing Becky to try out for track team on Feb. 27.

Morrisey announced two weeks ago his decision to take the case to the Supreme Court in conjunction with the conservative Alliance Defending Freedom, which represents former West Virginia collegiate soccer player Lainey Armistead.

He said the reinstated injunction “harms biological female athletes, who will continue to be displaced as long as biological males join women’s sports teams.”

“In that way, the Fourth Circuit’s decision undermines equal protection—it doesn’t advance it. If males are allowed to compete alongside females, fairness evaporates,” Morrisey said in a statement last Thursday.

Becky has spent three seasons on the girls’ cross country team, but the brief downplayed Becky’s athletic achievements, saying Becky typically finishes at the back of the pack and that no girl has been displaced by Becky’s participation.

“The only evidence in the record of anyone not making the cut for a team is that B.P.J. was not fast enough to make the girls’ running events for track-and-field in the Spring 2022 season, leading her to participate in discus and shot put instead,” the brief said. 

Becky has not undergone male puberty after being prescribed puberty blockers in June 2020. Becky began taking hormones last year.

“As a result, B.P.J. has not and will not go through endogenous puberty, meaning she has not and will not experience any of the physiological characteristics consistent with puberty typical of boys, including an increase in circulating testosterone levels,” said the filing.

In other words, Becky isn’t Lia Thomas, who smashed Ivy League collegiate swimming records last year and became the first biological male to win an NCAA Division I women’s title. Or hurdler CeCe Telfer, who became the first biological male to win an NCAA Division II women’s crown in 2019.

The ACLU and Lambda Legal called the emergency filing a “petty and baseless move.”

“A 12-year-old girl playing with her peers is hardly an emergency, and we urge the court to deny the state’s request.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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