U.S. Supreme Court

Transgender girl can stay on team, for now, after SCOTUS denial; action comes as US proposes new Title IX rule

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The U.S. Supreme Court on Thursday refused to reinstate a West Virginia law that bans transgender athletes from playing on female sports teams.

The high court refused to act on an emergency petition filed by the state in the case of Becky Pepper-Jackson, a 12-year-old transgender girl who is a member of a female track team, report the New York Times, the Washington Post, NPR, Law360 and an April 6 press release by the American Civil Liberties Union.

Justice Samuel Alito said he would have granted the state’s emergency application in a dissent joined by Justice Clarence Thomas.

The issues in the case are whether Becky’s participation on the girls team is protected by the equal protection clause of the 14th Amendment and Title IX of the Education Amendments of 1972.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, had blocked the law during an appeal. The Supreme Court’s refusal to grant the emergency petition keeps in place the 4th Circuit’s injunction against enforcement.

Alito said the 4th Circuit had “provided no explanation whatsoever for its decision.”

He acknowledged, however, that West Virginia had not appealed an initial injunction issued by the trial judge in the case. That meant that the state left the injunction “unchallenged for nearly 18 months before seeking emergency relief.”

But the state is entitled to relief in this case, given the trial judge’s decision for West Virginia on the merits and the 4th Circuit’s lack of an explanation, Alito said.

The Supreme Court declined to act on the emergency petition on the same day that the Biden administration proposed a Title IX rule change that would prevent schools from implementing across-the-board bans on transgender athletes playing on sports teams that match their gender identities.

But schools could develop eligibility criteria that ban transgender students from teams to ensure important objectives, such as ensuring fairness or preventing sports-related injuries, according to a U.S. Department of Education fact sheet.

The Washington Post and the New York Times have coverage.

The Education Department anticipates that its proposed regulation would generally allow grade school students to compete on sports teams consistent with their gender identity. But the considerations may be different at the high school and university level, the Education Department said.

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