Two conservative justices dissented from the Supreme Court’s decision Thursday to decline to review a state’s law banning biological men from competing in women’s sports.
West Virginia asked the court to overturn an injunction against its Save Women’s Sports Act in early March, which had been blocked by the Fourth Circuit after a challenge from the American Civil Liberties Union (ACLU). In a dissent joined by Justice Clarence Thomas, Justice Samuel Alito wrote that the request concerns an issue the court will “likely to be required to address in the near future.”
The Fourth Circuit panel, which ruled 2-1 to grant the emergency injunction, was divided on whether Title IX of the Education Amendments of 1972 and the Fourteenth Amendment’s Equal Protection Clause prohibit restricting participation in women’s sports based on sex, Alito noted.
“[In] the circumstances present here—where a divided panel of a lower court has enjoined a duly enacted state law on an important subject without a word of explanation, notwithstanding that the District Court granted summary judgment to the State based on a fact-intensive record—the State is entitled to relief,” Alito wrote.
The ruling means 12-year-old middle school student Becky Pepper-Jackson, a biological male who identifies as female, will be allowed to continue participating on a girls cross country team. The ACLU, which filed the initial lawsuit on behalf of Pepper-Jackson, said the law was a “baseless and cruel effort to keep Becky from where she belongs.”
“We are grateful that the Supreme Court today acknowledged that there was no emergency and that Becky should be allowed to continue to participate with her teammates on her middle school track team, which she has been doing without incident for three going on four seasons, as our challenge to West Virginia’s onerous trans youth sports ban makes its way through the courts,” the ACLU said in a statement.
West Virginia Attorney General Patrick Morrisey said in a statement he remains “confident” the law will ultimately prevail.
“This is a procedural setback, but we remain confident that when this case is ultimately determined on the merits, we will prevail,” Morrisey said in a statement. “We maintain our stance that this is a common sense law—we have a very strong case. It’s just basic fairness and common sense to not have biological males play in women’s sports.”
Alliance Defending Freedom (ADF) Senior Counsel Christiana Kiefer also said they would continue to litigate.
“Today’s decision didn’t end this case,” Kiefer said. “While we hoped the Supreme Court would lift the injunction that the 4th Circuit imposed—with no explanation—on West Virginia’s women’s sports law, we remain committed to protecting female athletes by continuing to litigate this case in the court of appeals, and across the country through other lawsuits defending women’s sports.”
Kiefer continued to note that sports “underscore the inherent biological differences between the sexes.”
“When society and the law try to ignore reality, people get hurt,” she said. “In sports, it’s women and girls who pay the price. Thankfully, a growing number of states are stepping up to protect women’s athletics. Right now, 20 states have enacted laws that protect women and girls from having to compete against males, and polls show that a majority of Americans agree that the competition is no longer fair when males are permitted to compete in women’s sports.”
ADF is representing Lainey Armistead, who intervened in the lawsuit because of her interest in defending the law as a former West Virginia State University soccer player.
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