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Federal judge says transgender case can move forward

CHARLESTON — An effort by state and county education and athletic officials to get themselves removed from a case involving a transgender student athlete was rejected by a federal judge, moving the case forward.

In a memorandum opinion and order issued Wednesday, U.S. District Judge Joseph Goodwin denied motions to dismiss by the Harrison County Board of Education, the West Virginia Board of Education, State Superintendent of Schools Clayton Burch, and the West Virginia Secondary School Activities Commission in a case brought by Becky Pepper-Jackson, a transgender student at Bridgeport Middle School.

Attorneys for Pepper-Jackson filed suit in May in the District Court for the Southern District of West Virginia against the education officials and the Secondary Schools Activities Commission seeking to halt enforcement of House Bill 3293, relating to single-sex participation in interscholastic athletic events. Pepper-Jackson wished to join her middle school’s girls’ cross-country team.

In a statement Thursday, Pepper-Jackson thanked Goodwin for rejecting the motions to dismiss her case.

“I just want to run, and the state wants to stop me from running as part of a team at my school,” Pepper-Jackson said. “I love running and being part of a team, and the state of West Virginia should explain in court why they won’t let me.”

HB 3293 requires student athletes in middle school, high school or college to participate in sports that match their biological sex based on the student’s sex at the time of their birth. The bill applies to sports regulated by the NCAA and other college interscholastic organizations, and requires the state Board of Education, the commission and state college regulators to create rules for the implementation of the law.

Pepper-Jackson’s attorneys allege the law violates her federal Title IX rights, prohibiting the exclusion of students from education programs on the basis of sex. They also allege constitutional violations of Pepper-Jackson’s rights under the Equal Protection clause of the U.S. Constitution’s 14th Amendment.

Goodwin granted a preliminary injunction blocking the law in July.

Attorneys for the state Board of Education, Superintendent Burch and the commission argued they should be dismissed from the case because they had no power to enforce HB 3293. Attorneys for the Harrison County Board of Education argued they had no intentions to enforce the law.

Goodwin viewed the matter differently.

“(Pepper-Jackson) has adequately alleged an injury-in-fact, that she will be treated differently on the basis of sex; she has asserted that under HB 3293, each defendant will take some action that will cause her asserted harm; and she has established that each defendant can redress her claims because a favorable ruling against each will prevent them for enforcing (HB 3293),” Goodwin wrote.

Pepper-Jackson is represented by Lambda Legal, the state and national chapters of the American Civil Liberties Union and the law firm Cooley LLP.

“We’re pleased that Becky will now have the opportunity to make her case in court,” said Avatara Smith-Carrington, a staff attorney with Lambda Legal.

“We’ve said all along that this bill is not only cruel and stigmatizing but also unconstitutional,” said Loree Stark, legal director for the ACLU-WV. “With this ruling today, we look forward to proving our case in court.”

“We are pleased that the Court agreed that HB 3293 enlists multiple entities along with the State of West Virginia in carrying out its discrimination,” said Kathleen Hartnett with Cooley LLP. “We look forward to building on our successful preliminary injunction motion and obtaining a final judgement in Becky’s favor.”

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