Becky Pepper-Jackson
WASHINGTON – Attorneys for a 15-year-old West Virginia transgender athlete have filed a response brief with the U.S. Supreme Court as she and her mother fight a 2021 state law barring her from participating on girls’ athletic teams.
Becky Pepper-Jackson and her mother Heather Jackson are challenging the Save Women’s Sport Act, which was signed by former Gov. Jim Justice in 2021. The Supreme Court said in July it would hear the state’s appeal of a Fourth Circuit ruling that blocked the law after saying it violated transgender students’ rights under Title IX.
“I play for my school for the same reason other kids on my track team do — to make friends, have fun, and challenge myself through practice and teamwork,” Pepper-Jackson said in a November 10 ACLU press release. “And all I’ve ever wanted was the same opportunities as my peers. Instead, I’ve had my rights and my life debated by politicians who’ve never even met me but want to stop me from playing sports with my friends.
“I know this case isn’t just about me, or even just about sports. It’s just one part of a plan to push transgender people like me out of public life entirely. I’m proud to stand up alongside my mom for what I believe and who I am and I want other transgender kids to know they aren’t alone.”
Her mother said she’s always raised her children to “stay true to themselves, no matter what anyone else tells them.”
“I'm so proud of Becky and the young woman she's becoming, one who is hardworking, kind and a team player,” Jackson said. “My daughter and every transgender kid like her deserves the freedom to be themselves and a future where no one is discriminated against just because of who they are.”
Pepper-Jackson and her mother are represented by the American Civil Liberties Union, ACLU-West Virginia, Lambda Legal and Cooley LLP.
In the filing, they ask if West Virginia’s categorical prohibition against transgender girls playing on girls’ school sports teams violates Title IX and whether it violates the Equal Protection Clause of the Fourteenth Amendment.
“West Virginia’s law banned exactly one sixth-grade transgender girl from participating on her school’s cross-country and track-and-field teams with her friends,” the response states. “Rarely has there been such a disconnect between a law’s actual operation and the claimed justifications for it.”
In its September filing, the state called transgender athletes a threat to equity in women’s sports provided by Title IX, the federal civil rights law that prohibits discrimination on the basis of sex in education programs.
“Male athletes identifying as female are increasingly competing in women’s sports, erasing the opportunities Title IX ensured,” the state’s brief states. “Women and girls have lost places on sports teams, surrendered spots on championship podiums and suffered injuries competing against bigger, faster and stronger males. For too many women and girls, the ‘thrill of victory’ is gone.”
In this week’s response, Pepper-Jackson’s attorneys say the state brief “is brimming with contradictions.”
“It asserts that its categorical ban reflects real biological differences between boys and girls with respect to athletics,” they wrote. “But whether that assertion is true for transgender girls — in particular, transgender girls like B.P.J. who have never experienced endogenous male puberty and who have instead gone through a female hormonal puberty — remains a disputed question of fact that cannot be resolved in this court.
“And if B.P.J. has no biological athletic advantage over her cisgender peers, West Virginia’s arguments fall apart.”
Pepper-Jackson’s attorneys also say the state “is utterly dismissive of the harm it inflicts by denying … participation to girls who are transgender.”
“School athletics are fundamentally educational programs, and the benefits of participation are not a zero-sum game,” they wrote. “Yet West Virginia seeks to exclude B.P.J. from participating even on ‘no cut’ teams like cross-country or intramural sports, regardless of whether there are any trophies or scholarships to compete over.”
Joshua Block, senior counsel for the ACLU’s LGBTQ & HIV Project, said this case is “fundamentally about the ability of transgender youth like Becky to participate in our schools and communities.”
“School athletics are fundamentally educational programs, but West Virginia’s law completely excluded Becky from her school’s entire athletic program even when there is no connection to alleged concerns about fairness or safety,” Block said. “As the lower court recognized, forcing Becky to either give up sports or play on the boy’s team – in contradiction of who she is at school, at home, and across her life–is really no choice at all.
“We look forward to defending her rights, and the rights of every young person, to be included as a member of their school community, at the Supreme Court.”
In May, Pepper-Jackson, who was a freshman at Bridgeport High School, competed in the state track and field championships. She earned a bronze medal in the Class AAA girls’ discus with a 122-foot, 11-inch throw. She finished eighth in the shot put as well.
The Supreme Court also has agreed to hear Little v. Hecox, a challenge brought by a transgender student against Idaho’s 2020 ban on transgender athletes and requirements for sex testing. The American Civil Liberties Union, the ACLU of Idaho, Legal Voice and Cooley LLP represent the plaintiffs in this case.
