US appeals court skeptical of West Virginia law banning transgender athletes
Judge predicts the panel's eventual decision will be a "waystation" to the U.S. Supreme Court
At least 22 other states have passed similar bans
Recasts lede
By Brendan Pierson
Oct 27 (Reuters) -A federal appeals court panel on Friday appeared likely to allow a transgender middle school girl in West Virginia to compete in girls' track and field despite a state law that seeks to ban transgender girls from taking part in girls' sports.
Joshua Block of the American Civil Liberties Union, urged the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals at oral argument to reverse a lower court ruling upholding the law. The 4th Circuit previously blocked the state from enforcing the law against the student while it hears the case.
"There's no right to rank above people because of their transgender status, or their race or their religion, unless there's something that makes the competition unfair," said Block, who is representing transgender student Becky Pepper-Jackson.
Pepper-Jackson is an eighth grader at Bridgeport Middle School in Bridgeport, West Virginia, and has competed in track and field for three seasons there, according to court filings.
Because she has not gone through male puberty, there was no such unfairness, he said.
Block also said that a 2020 decision by the 4th Circuit upholding the right of a transgender boy to use the boy's bathroom was "controlling," establishing that discrimination based on transgender status was illegal.
West Virginia Solicitor General Lindsay See countered that the state had presented evidence that, even without male puberty, transgender girls have an advantage. She said the court should defer to the state legislature in evaluating the scientific evidence.
"Biological sex dictates physical characteristics that are indisputably relevant to athletics," she said.
Two members of the panel, Circuit Judges Pamela Harris and Toby Heytens, appeared skeptical of the state's argument.
Harris, an appointee of former Democratic President Barack Obama, questioned whether the court should view the state's law in light of other laws it had passed affecting transgender people, including a ban on so-called gender-affirming care like puberty blockers and hormones for minors.
Heytens, who was appointed by Democratic President Joe Biden, said the state seemed to be arguing that "no cisgender girl should ever have to suffer the indignity of finishing behind any transgender girl."
Circuit Judge G. Steven Agee, an appointee of former Republican George W. Bush, was more sympathetic, in particular questioning whether the bathroom case was relevant.
Using a bathroom is "not that much different than breathing or sleeping," he said. "But competitive athletics is substantively different, it seems to me, than that."
Agee, who had dissented from the court's earlier order pausing enforcement of the law, also said that the panel's eventual decision would likely be a "waystation" to the U.S. Supreme Court.
At least 22 other states have passed laws on sports similar to West Virginia's. One, in Idaho, was recently blocked by the 9th Circuit.
The Biden administration's Department of Education in April proposed a rule change that would prohibit schools from enacting outright bans on transgender athletes from teams that are consistent with their gender identities while offering flexibility on exceptions for the highest levels of competition.
The case is B.P.J. v. West Virginia Secondary School Activities Commission, 4th U.S Circuit Court of Appeals, No. 23-1130.
For plaintiff: Joshua Block of the American Civil Liberties Union
For the state: Solicitor General Lindsay See
Read more:
U.S. Supreme Court declines to allow West Virginia transgender athlete ban
Transgender student wins as U.S. Supreme Court rebuffs bathroom appeal
US appeals court blocks Idaho's transgender student athlete ban
Schools cannot issue total ban on transgender athletes under Biden proposal
(Reporting By Brendan Pierson in New York)
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