West Virginia AG vows to keep defending girls' sports despite court ruling against transgender ban

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West Virginia Attorney General Patrick Morrisey vowed to keep fighting to keep biological males out of girls' sports after a federal appeals court ruled Tuesday to overturn a state transgender sports ban because it "violated the Equal Protection Clause and Title IX."

The 2-1 ruling Tuesday from the 4th U.S. Circuit Court of Appeals blocks a West Virginia law, signed in 2021, that bans transgender girls from playing on girls’ sports teams. The court said the law cannot lawfully be applied to a middle-school aged trans girl who has been taking puberty-blocking medication and has publicly identified as a girl since the third grade.

"I am deeply disappointed in the court’s divided decision today," Morrisey said in a statement. "The Save Women’s Sports Act is ‘constitutionally permissible’ and the law complies with Title IX."

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"We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field," he said. "We know the law is correct and will use every available tool to defend it."

In 2021, after the law went into effect, the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of 12-year-old transgender athlete, Becky Pepper Jackson (B.P.J) who would be kicked off the middle school’s track and field team under the new ban. Jackson's lawyers argued the law violated the 14th Amendment and protections under Title IX.

West Virginia was one of 24 states that had laws barring biological males from competing in girls' sports.

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"Offering B.P.J. a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all," Judge Toby Heytens wrote in Tuesday's opinion. "The defendants cannot expect that B.P.J. 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 introducing herself to teammates, coaches, and even opponents as a boy."

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The ACLU cheered the court's decision and called it a "tremendous victory" for Jackson and West Virginians.

"It also continues a string of federal courts ruling against bans on the participation of transgender athletes and in favor of their equal participation as the gender they know themselves to be," senior ACLU attorney for the ACLU’s LGBTQ & HIV Project, Joshua Block, said in a statement. "This case is fundamentally about the equality of transgender youth in our schools and our communities and we’re thankful the Fourth Circuit agreed."

Fox News' Ryan Gaydos contributed to this report.