West Virginia on Tuesday asked the Supreme Court to hear a case against a state law barring transgender athletes from girls’ and women’s school sports teams, citing the high court’s recent decision to uphold a Tennessee law banning gender-affirming care for minors.
In a statement, West Virginia Attorney General John McCuskey (R) said the state is confident in the merits of its case and defense of its law, the Save Women’s Sports Act, which Sen. Jim Justice (R) signed in 2021 during his tenure as the state’s governor.
“The law is constitutional and complies with Title IX,” McCuskey said Tuesday, referencing the federal law against sex discrimination that President Trump’s administration has said prohibits transgender girls from participating on girls’ school sports teams.
McCuskey praised the justice’s ruling in the Tennessee case, U.S. v. Skrmetti, as “a landmark decision” but said it did little to answer the specific question West Virginia first posed to the court in 2023.
“That is why we are urging the Supreme Court, through our supplemental filing, to take our case and allow the women and girls of West Virginia to begin enjoying the protections of the Save Women’s Sports Act,” he said.
The Supreme Court rejected a previous request to lift a lower court order that has since 2023 prevented West Virginia from enforcing its law against a now-high school student who throws discus and shot put for her school’s girls’ track-and-field team.
When the student, Becky Pepper Jackson, first sued the state over its restrictions on transgender athletes, she was 11 years old and in middle school.
Last spring, West Virginia’s former attorney general, now-Gov. Patrick Morrisey (R), asked the high court to intervene for the second time. The justices have yet to respond.
West Virginia’s supplemental filing argues the Supreme Court’s Skrmetti ruling warrants a fresh review of the law, which it says confronts “a serious social debate.” A previous decision by the 4th U.S. Circuit Court of Appeals said the measure violates Title IX and the U.S. Constitution’s Equal Protection Clause.
“United States v. Skrmetti disclaims any guidance on the Title IX question presented here, and the decision’s equal-protection analysis does not address critical questions unique to athletics,” the filing, submitted by McCuskey, the Alliance Defending Freedom and attorneys representing members of the West Virginia Board of Education, says.
It asks that the justices take up the case rather than sending it back to the 4th Circuit for further review, citing incongruity in how federal courts have responded to challenges of similar laws in over half the country.
“A remand will not resolve these circuit conflicts,” the filing argues. “Assume the unlikely scenario where the Fourth Circuit changes course on remand and holds that a law assigning athletic teams by sex does not differentiate based on transgender status or, alternatively, holds that transgender status does not constitute a suspect class. Both circuit splits would remain: the first would move from 2–3 to 1–4, and the second from 4–2 to 3–3. The Court should thus review now.”
The American Civil Liberties Union, which is representing Jackson, did not immediately return a request for comment on the filing.
In its ruling last week, the Supreme Court declined address whether transgender status is a “quasi-suspect class” under the Equal Protection Clause of the 14th Amendment. In a concurring opinion, Justice Amy Coney Barrett wrote that transgender people are neither a “suspect” nor “quasi-suspect” class, classifications that would trigger heightened scrutiny when laws discriminate against them.
“Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy — ranging from access to restrooms to eligibility for boys’ and girls’ sports teams,” she wrote. “If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of ‘closely scrutiniz[ing] legislative choices’ in all these domains.”
West Virginia’s filing on Tuesday says the Supreme Court should grant its petition and explain that laws restricting trans athletes’ participation in girls’ sports do not classify based on transgender status “or hold that transgender-based classifications do not affect a suspect class.”
The filing also argues that the high court must decide whether its reasoning in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964 shields employees from discrimination based on their sex or gender identity, can be applied to other statutes, including Title IX. The Supreme Court declined to answer that question in its Skrmetti decision.
“Girls deserve a safe, fair playing field today — not years from now — and the ruling’s present harm to women and girls is stark,” the filing says, referring to the 4th Circuit ruling that is blocking the law.
The Supreme Court must act to resolve a question “of national importance,” the filing argues, referencing an executive order signed by Trump in February that threatens to revoke federal funding from states and schools that continue allowing trans athletes to participate in girls’ and women’s sports.
“Should they follow an executive order that threatens all their funding—even funding unrelated to athletics? Or should they follow a court order that has not yet been applied to them?” the filing states. “The years of delay that would follow were the Court to grant, vacate, and remand here would not help, especially when Skrmetti did not purport to address the legal questions that drive this case.”
“The Court should take up this petition,” the filing adds, “and resolve this ‘important issue’ once and for all.”