Biden Judge Rules that West Virginia Law Cannot Stop 13-year Old From Participating on Publlc School Girls’ Track Team

Judge Thomas Heytens, nominated by President Biden to the Fourth Circuit court of appeals, wrote a 2-1 decision that reversed a lower court and authorized a 13-year-old transgender girl "who takes puberty-blocking medications and has publicly identified as a girl since the third grade" to participate in her public school girls' "cross country and track teams," despite a contrary West Virginia law. The April 2024 ruling was in BPJ v West Virginia State Board of Educ.

What is the background of this case?

Becky Pepper Jackson is a 13 year-old transgender girl who lives in West Virginia. She has publicly identified herself as a girl since third grade and takes puberty-blocking medications. She has sought to participate in her public school's girls track and cross country teams but has been blocked by West Virginia law.

The 2024 law specifically provides that girls or women's sports programs "shall not be open" to anyone whose "biological sex determined at birth is male." Judge Heytens noted that the law "worked a sea change" in who can participate in what school sports. Before the law, transgender teens could play on teams matching their gender identity if their school determined that it would not affect "fair competition," with any school in the league able to appeal the ruling to the state secondary school commission.

Becky filed suit against the law as applied to her. A lower court rejected her claims and entered summary judgment against her and in favor of the state. She appealed to the Fourth Circuit.

How did Judge Heytens and the Fourth Circuit Rule and Why is it Important?

Judge Heytens wrote a 2-1 decision that reversed the lower court and ruled that the West Virginia law violated federal civil rights law and may be unconstitutional as applied to Becky. The court ruled in her favor on two grounds: Title IX, a federal law which prohibits sex discrimination, and the constitution's equal protection clause.

With respect to Title IX, Judge Heytens' careful examination of the record and the relevant case law led to the conclusion that Becky had clearly been improperly "excluded from participation" in public school progrms "on the basis of sex." Although the state claimed that Becky had the "choice" of participating on the boys' teams, Judge Heytens explained that this was "no real choice at all." The state simply "cannot expect," Judge Heytens wrote, that Becky will "countermand her social transition, her medical treatment and all the work she has done with her schools, teachers, and coaches for nearly half her life" by now "introducing herself to teammates coaches and even opponents as a boy." Judge Heytens concluded that the lower court was wrong, vacated its decision on Title IX, and directed it to enter judgment in favor of Becky. He rejected arguments similar to the state's by Judge Steven Agee.

With respect to equal protection, after careful analysis, Judge Heytens determined that the key question was whether there was a "genuine dispute of material fact" on one issue: whether excluding Becky from the girls' teams is "substantially related" to the government's important interest in "competitive fairness." Becky had presented evidence, Heytens explained, that transgender girls "with her background and characteristics" have "no inherent, biologically- based competitive advantage" over cisgender girls. Contrary to the views of the state and the dissent, Heytens and the majority determined that the case should be returned to the district court to evaluate all the evidence on the equal protection claim. :

Judge Heytens' decision is obviously important to Becky Pepper Jackson and those who have supported her efforts. Although carefully limited, the ruling also sets an important precedent concerning transgender teens' participation in sports. This is particularly true in the Fourth Circuit, including Virginia, West Virginia, Maryland, and North and South Carolina. As Judge Agee hoped in his dissent, the decision may well be considered by the Supreme Court. The ruling also serves as an important reminder of the significance of promptly confirming fair-minded nominees like Judge Heytens to our federal courts.

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