CHARLESTON – Three West Virginia state and local agencies at the heart of a lawsuit challenging the prohibition on transgender girl and woman student-athletes all put the blame on the Legislature and Gov. Jim Justice for the law, claiming they have no enforcement authority.

The West Virginia Secondary School Activities Commission, the West Virginia Board of Education and State Superintendent of Schools Clayton Burch, and the Harrison County Board of Education all filed motions for summary judgement Thursday in the U.S. District Court for the Southern District of West Virginia.

Attorneys for the WVSSAC, the state BOE, and Harrison BOE are seeking dismissal of claims brought by Becky Pepper-Jackson, a transgender student at Bridgeport Middle School. They also seek their removal as parties in the lawsuit.

Attorneys for Pepper-Jackson filed suit last May seeking to halt enforcement of House Bill 3293, relating to single-sex participation in interscholastic athletic events. 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.

Pepper-Jackson, a transgender girl, wished to join her middle school’s girls’ cross-country team. Pepper-Jackson is represented by Lambda Legal, the state and national chapters of the American Civil Liberties Union and the law firm Cooley LLP. They argue that HB 3293 violates Pepper-Jackson’s rights under Title IX which prevents discrimination of women in sports, and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

Roberta Green, an attorney with the Charleston law firm Shuman McCuskey Slicer, wrote the motion for the WVSSAC. Green said that attorneys for Pepper-Jackson did not show how the WVSSAC has any authority under HB 3293. The bill, signed into law last year, requires the state Board of Education, the Higher Education Policy Commission, and the West Virginia Community and Technical College System to promulgate rules for enforcement of the new law, but it mentions nothing about the WVSSAC.

“(Pepper-Jackson) alleges but has failed to prove that WVSSAC is a federally funded program,” Green wrote. “Further, (Pepper-Jackson) has failed to prove that WVSSAC could be a proper party for either her Title IX or her Equal Protection claims because, once again, (Pepper-Jackson) has failed to prove that WVSSAC is a state actor.

“Although (Pepper-Jackson) alleges … that ‘B.P.J. is irreparably harmed by Defendants’ illegal conduct’ in violation of Title IX and in violation of the Equal Protection Clause, she has not identified any illegal conduct on the part of WVSSAC,” Green continued. “(Pepper-Jackson) points to no action by WVSSAC that has resulted in discrimination against (her), and thus no basis on which to find that an Equal Protection or Title IX violation has occurred, or that (she) has been damaged by any action of WVSSAC.”

Green said that even though the WVSSAC maintains a rules and regulation handbook, the state Board of Education is the body that creates those rules, with the WVSSAC having no control over those rules. Only the state Board of Education can revise, amend, or provide waivers for rules. The WVSSAC is a non-profit private corporation created in 1916 to provide a neutral forum for addressing disputes between school athletic programs.

In the filing for the state BOE and Burch, attorney Kelly Morgan with the law firm Bailey and Wyant placed the blame for the law squarely on the Legislature and Justice, who signed the bill into law. Morgan wrote that Pepper-Jackson’s attorneys failed to establish that the state Board of Education have or would enforce HB 3293.

“There is no evidence that WVBOE Defendants requested a legislative bill regarding the substance of HB 3293 or played a role in the introduction or initial drafting of HB 3293,” Morgan wrote. “WVBOE’s only legislative involvement in HB 3293 was limited to answering specific questions posed to it during a West Virginia House of Delegates Education Committee meeting … Superintendent Burch, as a representative of WVBOE, did and does not support HB 3293.”

Steptoe and Johnson attorney Susan Deniker is representing the Harrison County Board of Education and Superintendent Dora Stutler. In her filing Deniker said that the state bears responsibility for the law and that any enforcement of the law by the county board of education would make them acting on the state’s behalf.

“The County Board has no policy or custom of its own that prevents (Pepper-Jackson) or any other transgender female from joining the girls’ teams due to transgender status,” Deniker wrote. “However, the County Board is required to follow the law, and so it is tasked with enforcing the Act to the extent that it goes into effect. Of course, if the Act never goes into effect as to (Pepper-Jackson), the County Board will never enforce it as to her. Thus, the County Board has not caused the alleged harm to (Pepper-Jackson) as set forth in her amended complaint.”

U.S. District Judge Joseph Goodwin set a date to hear motions for summary judgement for Wednesday, June 8, at 10 a.m. A trial date is set for Tuesday, July 26, at 8:30 a.m.