The Supreme Court on Thursday rejected an appeal from West Virginia to keep a law in place that bans biological boys from playing on girls sports teams while the state fights a challenge to that law from the American Civil Liberties Union (ACLU).
The decision means a lower court's order to keep the law on hold while the litigation continues remains in place.
Justices Samuel Alito and Clarence Thomas dissented from the decision on West Virginia's law, and argued that "enforcement of the law at issue should not be forbidden by the federal courts without any explanation."
Last month, West Virginia Attorney General West Virginia Patrick Morrisey and lawyers from the Alliance Defending Freedom (ADF) asked the Supreme Court to weigh in on the case. The ACLU is trying to strike down the state's "Save Women's Sports Act," which bans male student athletes who identify and present themselves as female from playing on girls' school sports teams.
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When the state law was passed in 2021, it was immediately met with a lawsuit from the ACLU, which represented Becky Pepper-Jackson, a transgender middle school student who was barred from joining the girl's cross-country team.
The ACLU argued the law violated Pepper-Jackson's rights under the 14th Amendment's Equal Protection Clause and Title IX, a federal statute that prohibits sex-based discrimination. On Thursday, the ACLU praised the Supreme Court for keeping the law on hold while the challenge continues.
"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," the ACLU said in a statement Thursday.
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AG Morrisey told Fox News Digital that while the Supreme Court's Thursday decision is a "procedural setback," he feels "very strongly" that they will ultimately prevail on the merits of the case.
"Today’s decision didn’t end this case," ADF senior counsel Christiana Kiefer said in a statement.
"While we hoped the Supreme Court would lift the injunction that the 4th Circuit imposed — with no explanation — on West Virginia’s women’s sports law, we remain committed to protecting female athletes by continuing to litigate this case in the court of appeals, and across the country through other lawsuits defending women’s sports," she said.
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"Every woman deserves the respect and dignity that comes with having an equal opportunity to excel and win in athletics," she added.
Kiefer says she is optimistic that the Supreme Court will soon have an opportunity to hear a case – either this one or one of several currently in litigation over transgender players on women's sports teams – that will let her side show that "protecting women's sports on the basis of sex is constitutional and it's consistent with Title IX."
The case, B.P.J. v. West Virginia State Board of Education, is currently in litigation before the Fourth Circuit.
