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On April 6^th, the U.S. Supreme Court announced that it would not intervene in an ongoing case challenging a West Virginia law directing that children must participate in the sports teams that correspond with their biological sex, not their gender identity. With many states, including North Carolina, considering or having passed similar legislation, this case could have a national impact on girls’ sports.

The Background on the Case

The West Virginia law was challenged by Becky Pepper-Jackson, a biological male who has presented as a girl since the age of nine. The twelve-year-old has been on a girls’ track and field team for the past several years, and wants to continue to participate. Becky has been receiving hormone therapies designed to cause the development of physiological characteristics consistent with biological girls, in theory preventing any biological advantage over female competitors. In previous action, a federal district court judge allowed the law to go into effect, but the ruling was appealed to the Fourth Circuit Court of Appeals. The appellate court then issued a preliminary order that prevents the law from being enforced while it further considers the case. This temporary order prompted West Virginia’s attorney general to seek emergency relief from the U.S. Supreme Court.

At the U.S. Supreme Court

The Supreme Court’s stated reason for refusing to take the case was that the panel of the Fourth Circuit provided no explanation when they issued an order enjoining enforcement of the law for the duration of the appeal. Justice Alito wrote in the dissent, “Enforcement of the law at issue should not be forbidden by the federal courts without any explanation.” He did, however, acknowledge that the U.S. Supreme Court would likely have to address this issue in the near future.

What This Means For North Carolina

North Carolina has recently become the 30^th state to file “Save Women’s Sports” legislation, with 18 of those states having passed the legislation. House Bill 574 and Senate Bill 631, which are essentially identical, would require athletic teams in middle and high school to be designated as male, female, or coed. The bill specifies that teams designated for females “shall not be open to students of the male sex.” It further specifies “a student’s sex shall be recognized based solely on the student’s reproductive biology and genetics at birth.” In addition to this, a similar bill, Senate Bill 636, has also been introduced in the N.C. Senate.

Conclusion

As the Family Policy Alliance states on their website, “Sports are competitive, and like any competition they should be played on a fair and level playing field. There are divisions, age brackets, and weight classes for a reason. College sports are for college athletes. Professional sports for pro athletes. And female sports should be for female athletes.”