WASHINGTON, D.C. – Independent Women’s Law Center and Independent Women’s Forum today express disappointment at the Supreme Court’s refusal to enforce West Virginia’s women’s sports law pending appeal.

On Thursday, the Court declined to grant the state’s emergency request to enforce the Save Women’s Sports Act while the U.S. Court of Appeals for the Fourth Circuit reviews the case. The West Virginia law, passed in 2021, limits participation in women’s sports to biological females.

Becky Pepper-Jackson, a biological male who identifies as a girl, is challenging the law in federal court, claiming that it violates both the Equal Protection Clause of the United States Constitution and Title IX of the Education Amendments of 1972. But on January 5, 2023, U.S. District Court Judge Joseph Goodwin, a Clinton appointee, upheld the law. Judge Goodwin noted that the West Virginia statute is not unlawful as it simply enforces federal mandates that schools provide equal athletic opportunities for both males and females.

In February, a divided panel of the U.S. Court of Appeals for Fourth Circuit stayed Goodwin’s order and enjoined the state law from taking effect while it considers the case. 

The Supreme Court refused to intervene on an emergency basis to reverse the injunction, meaning that Pepper-Jackson and other trans-identified athletes in West Virginia may continue to compete in school sports according to their chosen identity for the time being. Justices Samuel Alito and Clarence Thomas indicated that they would have granted West Virginia’s request to enforce its law immediately, noting that the high court is likely to weigh in on the merits of the issue soon and that the Fourth Circuit should not have forbidden enforcement of the statute without explanation. 

Jennifer C. Braceras, director of Independent Women’s Law Center said, “Although we are disappointed that the Court declined to lift the injunction, the Court’s refusal to involve itself in an ongoing case without a full briefing or record is not that surprising.” 

Braceras continued, “Court watchers should be careful not to read this as an endorsement of the plaintiff’s case, which has yet to be heard by the court of appeals. We look forward to filing our amicus brief in the Fourth Circuit explaining why schools are not only entitled to protect the female sporting category but are legally required to do so by Title IX.” 

Riley Gaines, Stand with Women spokeswoman at Independent Women’s Forum, who filed a friend of the court brief supporting West Virginia’s request for emergency relief added, “States like West Virginia that are taking affirmative steps to protect the female category in sport are to be commended. As tennis legend Martina Navratilova has noted, ‘sex segregation [in sport] is the only way to achieve equality for women and girls.’ I am confident that the Supreme Court understands this and will rule in favor of women’s sports should this case eventually reach them on the merits.“

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