Feds: West Virginia transgender athlete ban violates law


CHARLESTON, W.Va. — The U.S. Department of Justice has slammed a new West Virginia law that bans transgender athletes from competing in female sports, asserting in a court filing Thursday that the ban violates federal law.

The department filed what is known as a statement of interest in a lawsuit by the American Civil Liberties Union, its West Virginia chapter and LGBTQ interest group Lambda Legal challenging the ban. The DOJ said the law violates Title IX, which prohibits discrimination on the basis of sex in any education program or activity receiving federal funds, as well as the equal protection clause of the 14th Amendment.

“The United States has a significant interest in ensuring that all students, including students who are transgender, can participate in an educational environment free of unlawful discrimination and that the proper legal standards are applied to claims under Title IX and the Equal Protection Clause,” the filing said.

“A state law that limits or denies a particular class of people’s ability to participate in public, federally funded educational programs and activities solely because their gender identity does not match their sex assigned at birth violates both Title IX and the Equal Protection Clause,” the filing said. The state law “does exactly this,” the department said.

The lawsuit was filed last month in U.S. District Court for the southern district of West Virginia on behalf of an 11-year-old transgender girl who had hoped to compete in cross country in middle school in Harrison County. The lawsuit names the state and Harrison County boards of education and their superintendents as defendants.

Several other states also have enacted bills this year over school sports participation bans. South Dakota Gov. Kristi Noem implemented the move by executive order. Other states, including Kansas and North Dakota, passed bans only to have them vetoed by the governor.

In February, the Biden administration withdrew government support for a federal lawsuit in Connecticut that seeks to ban transgender athletes from participating in girls high school sports. A federal judge dismissed that lawsuit in April.

A 2017 study by the Williams Institute at the UCLA law school used state-level, population-based surveys to estimate that West Virginia had the highest percentage (1.04%) of residents ages 13 to 17 among all states who identified as transgender. That equated to about 1,150 teens.

The West Virginia Secondary School Activities Commission, which oversees scholastic sports, said earlier this year that it had not received any complaints about transgender athletes on girls teams.

Several Democrats said the bill was discriminatory, but supporters have argued that transgender athletes would have physical advantages in female sports. Some Republicans said the bill was about protecting athletic opportunities for athletes who are identified as girls at birth.

“Neither the facts nor the law supports that assertion. To be sure, there remain significant barriers to providing full equity in athletics for female students,” the Justice Department said in its filing. But permitting participation by transgender girls, who make up less than 1% of the U.S. population, “is not one of them.”

The Justice Department also said the new law could lead to misunderstandings.

“Though the law purports to bar only transgender girls from joining the girls’ team, the practical effect is that every girl in West Virginia may be subject to having her eligibility for a single-sex team challenged merely because some other student claims the girl in question is not a ‘real’ girl,” the filing said.

Republican Gov. Jim Justice signed the bill despite warnings from some lawmakers that the NCAA could retaliate and decide not to hold college tournaments in the state. Justice had said that while it concerned him that the state could miss out on a sporting event, he believed the benefits of the law “way outweigh the bad part of it.”

In March, hundreds of college athletes signed a letter to the NCAA Board of Governors asking the organization to refuse to schedule championships in states that have banned transgender athlete participation in sports.

The NCAA in 2016 moved championships out of North Carolina in response to a bill legislating transgender people’s use of public restrooms.

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