West Virginia Attorney General Patrick Morrisey (R) announced on Wednesday he will ask the Supreme Court to step in after a federal appeals court found a state law violated the rights of a transgender middle school track and field runner.
Morrisey, who was standing alongside activist and OutKick host Riley Gaines when he announced the move, said he would file a cert petition to the nine justices as soon as next week. His decision comes days after the Biden administration finalized its controversial federal Title IX rule to expand the definition of sex to include transgender identities.
“Today is a great day, and we’re making a major announcement. We are going to go to the U.S. Supreme Court to overturn [a lower court’s] challenge to the Save Women’s Sports Act,” Morrisey said.
Earlier this month, a three-judge panel on the U.S. Court of Appeals for the 4th Circuit ruled against West Virginia in a case that sought to uphold its law that prevents athletes of opposite sexes from competing against one another.
The appeals panel did not overturn West Virginia’s law, but the majority found it unfairly discriminated against student Becky Pepper-Jackson under Title IX, which has historically been in place to block sex-based discrimination in any school or education program that receives federal funds.
Gaines is a former swimmer who made waves after she spoke out against Lia, formerly Will Thomas, competing in women’s swimming competitions.
Women athletes like Gaines contend that allowing a biological male who identifies as a female to compete against other females is its own form of sex discrimination and will lead to disastrous consequences for female athletes.
“It was clear to me, it was clear to my teammates, it was clear to my competitors, that the NCAA had reduced everything that we had worked our entire lives for down to a photo-op,” Gaines said, adding she was forced to change in the same locker room as Thomas.
In a dissent accompanying the court’s opinion, Judge G. Steven Agee said that the 4th Circuit’s opinion “turns Title IX on its head and reverses the monumental work Title IX has done to promote girls’ sports from its inception.”
West Virginia has so far seen some setbacks in attempting to have its law upheld by the courts.
Last April, the justices declined to act on a separate petition by West Virginia regarding a federal appeals court order that made it possible for Pepper-Jackson to remain on the school’s girls’ track and cross-country team.
Morrisey said that even counsel for Pepper-Jackson, who has the backing of the American Civil Liberties Union, has argued that there is a place for gender and sex separation in sports.
“We believe we have a strong case on the merits,” Morrisey said, noting that Justices Samuel Alito and Clarence Thomas previously indicated they would take up the case. It is unclear if the high court will have an appetite to review the case, however, and it takes four justices to act on an application to grant it for oral argument review.
“We’re confident that now that we’re further along procedurally, that the other justices will agree,” adding that “we’re seeing immediate harm to girls” in sports.
The case began after the ACLU initially sued West Virginia over its 2021 law. As the case progressed, the conservative firm Alliance Defending Freedom intervened on behalf of former West Virginia State University soccer player, Lainey Armistead.
“I want fairness, equality, and safety in sports,” Armistead said in a statement, adding she hopes the Supreme Court “will stand up for women and young girls who just want a level playing field.”
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Following Morrisey’s announcement, LGBT activist group Fairness West Virginia issued a statement saying West Virginia’s law contributes “to a hostile environment where trans youth are more likely to experience harassment, bullying, and discrimination.”
The Washington Examiner contacted the ACLU for comment.
