West Virginia asks Supreme Court to allow enforcement of school transgender sports ban

West Virginia has asked the Supreme Court to take emergency action so the state can enforce its law banning transgender women from competing on female school sports teams, the state attorney general’s office said.

A divided federal appeals court last month blocked enforcement of the law as the panel hears a challenge to it in full.

A spokesman for West Virginia Attorney General Patrick Morrisey (R) said the office filed an application with the Supreme Court on Thursday to lift that injunction. The high court has not yet docketed the appeal.

The statute, which was signed into law nearly two years ago, prohibits transgender women and girls from participating on female sports teams in public middle schools, high schools and universities.

“The decision was the West Virginia Legislature’s to make,” the state wrote in their application. “The end of this litigation will confirm that it made a valid one. In the meantime, the Court should set aside the Fourth Circuit’s unreasoned injunction and allow the State’s validly enacted law to go back into effect.”

A 12-year-old transgender girl, who is identified by initials “B.P.J.” in court documents and is represented by her mother because she is a minor, is challenging the law as violating the 14th Amendment’s Equal Protection Clause and Title IX, the federal civil rights law that prohibits sex-based discrimination in schools.

The case gives the justices an opportunity to weigh in for the first time on transgender athletes, which comes as Republicans at the state and federal levels increasingly look to pass restrictions. The high court last year declined to review a lower court's ruling in favor of a transgender boy who sued over access to his school's boys' bathroom.

A federal trial judge appointed by former President Clinton had blocked the West Virginia law’s enforcement during the suit’s preliminary stage. But the judge later reversed course and entered judgment in favor of the state.

A three-judge appeals court panel last month granted B.P.J.’s motion to block enforcement as the panel considered the appeal in full. The two Democratic-nominated judges ruled in favor of B.P.J., while the one Republican-nominated judge dissented.

“The Fourth Circuit’s unreasoned injunction silently adopting this thinking also does real damage on the ground,” the state wrote to the justices. “It spurns West Virginia voters who deserve to have their laws enforced when their elected representatives respond to an identified problem. States should continue to have the right to legislate—even in politically controversial areas— without unexplained reversals from on high.”