In the strongest move yet this year from the Biden administration in support of transgender students’ rights, the Departments of Justice (DOJ) and Education (DOE) have filed a joint brief in support of a transgender girl who is suing her state for the right to participate in school sports.
The DOJ and DOE told the federal court that it is illegal under both Title IX and the Constitution for states to ban transgender girls from sports and asked the court to overturn the state law in a brief signed by many of the top lawyers in both Biden administration departments.
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Eleven-year-old Becky Pepper-Jackson’s family is suing the state of West Virginia after she was told that she couldn’t join the girls’ cross-country team in middle school because she’s transgender.
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The ACLU, which is helping with the case, claims in the suit that state lawmakers relied on “unfounded stereotypes, false scientific claims, and baseless fear and misunderstanding of girls who are transgender” when passing a ban on trans girls in sports earlier this year, citing ignorant statements made during the legislature’s debate on the issue.
Now the Biden administration has filed a brief in support of Pepper-Jackson’s lawsuit.
“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 brief, which is signed by several top lawyers at both departments, says.
Title IX bans discrimination “on the basis of sex” in schools that receive federal money, and both President Joe Biden and the DOE have said that that bans anti-LGBTQ discrimination since it’s impossible to discriminate against LGBTQ people without taking sex into account.
Here, West Virginia’s law only bans some girls from girls’ sports and discriminates based on a girl’s sex assigned at birth, which the DOJ/DOE brief says hurts Pepper-Jackson because it’s an attempt to “erase who she is” that will “devastate her.”
The brief also responds to state lawmakers’ claims that allowing transgender girls to play sports will harm cisgender girls because cisgender girls can’t win against transgender girls and will be “displaced” by a wave of transgender girls taking over girls’ sports, saying that “there are no facts to suggest” that that will ever happen or that Pepper-Jackson herself will cause that to happen.
“Justification must be genuine, not hypothesized,” the brief says. “As a factual matter, there is no discernible risk that transgender girls will somehow ‘displace’ cisgender girls ‘to a substantial extent.'”
The DOJ/DOE brief also notes that Pepper-Jackson’s principal told her that she can’t participate in the girls’ cross-country team because she’s trans, but he also said that it would be “confusing” for her to participate in the boys’ cross-country team because she’s a girl.
She has been presenting as a girl since she was four-years-old and her classmates see her as a girl, so making her run with the boys’ team would “undermine her social transition,” the brief said.
The brief says that West Virginia’s ban on trans girls in sports violates the Equal Protection Clause of the 14th Amendment, citing Gavin Grimm’s case where the Fourth Circuit Court of Appeals ruled that “one would be hard-pressed to identify a class of people more discriminated against historically or otherwise more deserving of the application of heightened scrutiny when singled out for adverse treatment” than transgender people. Grimm was a student in Virginia who sued when his school wouldn’t let him use the boys’ bathroom.
“It does not matter that H.B. 3293 categorizes teams without explicitly referencing ‘transgender students’: by categorizing teams based on that law’s definition of ‘biological sex,’ girls who are transgender are the only group who cannot compete on sports teams that align with their gender identity,” the brief says.
The brief shows a stark contrast with the DOJ and the DOE under Donald Trump. The two departments came together to roll back protections for transgender students in 2017 almost immediately after Trump took the White House.
It’s also the most pointed act from the Biden administration so far in response to the wave of state laws attacking transgender girls this year. The administration has put executive orders and anti-discrimination rules in place, but now it is showing its teeth by entering into a legal dispute that ultimately ends at least one state’s anti-trans law.
Dozens of states either considered or passed laws banning trans girls from school sports after years of letting them participate or having no policy on how they could participate. Lawmakers in different states used similar language in their bills and their speeches to advance their bills while they had difficulty explaining why their state in particular had any need to ban trans girls from sports.
Even West Virginia Gov. Jim Justice (R) couldn’t say that trans girls were taking over sports in his state after he signed the bill that Pepper-Jackson is suing over. He said on MSNBC that there were only “12 kids maybe in our state that are transgender-type kids, for cryin’ out loud!” when pressed on the conservative claim that trans kids are taking over school sports.
