She won the match-up by a mile.
With two lonely dissents from the right-most side of the Supreme Court’s bench,12-year-old Becky Pepper-Jackson became the first transgender kid to receive the high court’s blessing, at least for now, to keep competing in her West Virginia school’s track team. Only Justices Samuel Alito and Clarence Thomas expressed that they would have ruled otherwise.
“We are grateful that the Supreme Court today acknowledged that there was no emergency and that Becky should be allowed to continue to participate with her teammates on her middle school track team, which she has been doing without incident for three going on four seasons, as our challenge to West Virginia’s onerous trans youth sports ban makes its way through the courts,” three civil rights organizations backing her wrote in a joint statement. “This was a baseless and cruel effort to keep Becky from where she belongs–playing alongside her peers as a teammate and as a friend.”
The American Civil Liberties Union, the ACLU of West Virginia, and Lambda Legal co-signed the statement.
Though a significant victory for her, the summary order does not grant transgender student-athletes a constitutional right to compete in sports consistent with how they identify. The Supreme Court declined to hear an “emergency” petition from Attorney General Patrick Morrissey (R) to block Pepper-Jackson from running as the case progressed.
As the ruling came from the Supreme Court’s so-called “shadow docket,” it’s unclear whether the summary order was a 7-2 decision — or other possible dissents weren’t publicly noted.
Two years ago this month, Republican West Virginia Gov. Jim Justice signed HB 3293, described as related to “single-sex participation in interscholastic athletic events.” The ACLU, its local offshoot, and Lambda Legal sued on Pepper-Jackson’s behalf the following month. She received backing from President Joe Biden’s Department of Justice. After a lower court judge allowed the law to remain in effect, the Fourth Circuit blocked the legislation without explanation.
After AG Morrissey asked the Supreme Court to dissolve that appellate ruling, Alito wrote a dissent stating he would have granted that injunction.
“Among other things, enforcement of the law at issue should not be forbidden by the federal courts without any explanation,” the dissent states.
West Virginia had waited 18 months to seek relief, which Alito agreed wasn’t “wise.” But Alito indicated that he was willing to set that aside.
“If we put aside the issue of the State’s delay in seeking emergency relief and if the District Court’s analysis of the merits of this case is correct, the generally applicable stay factors plainly justify granting West Virginia’s application,” he wrote.
The ACLU says that West Virginia is one of 19 states that have banned transgender student-athletes.
Read the ruling here.
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