Photo Courtesy/WV Legislative Photography Curtis Capehart, the director of policy for Gov. Patrick Morrisey, told lawmakers Monday that the Riley Gaines Act was in compliance with pending federal court cases regarding transgender use of bathrooms.

CHARLESTON — For the second year in a row, a committee of the West Virginia House of Delegates is moving a bill to define terms for “male” and “female” and State Code in order to protect biological girls and women from transgender girls and women.

The House Judiciary Committee heard testimony from the Governor’s Office Monday morning on House Bill 2006, defining men and women. The bill will move on to the committee’s markup and discussion phase.

HB 2006, introduced at the request of Gov. Patrick Morrisey, aims to define “sex,” “male,” and “female” in State Code based on biological characteristics at birth. The bill focuses on preserving single-sex spaces — such as restrooms, changing rooms, and sleeping quarters for overnight trips — within domestic violence shelters, public schools, and state higher education institutions.

Morrisey first announced a partnership on Jan. 14 with the Legislature on his second day since being sworn as governor to pass a law setting legal definitions for gender in State Code. During his State of the State Address on Feb. 12, Morrisey called on lawmakers to pass what he is now calling the Riley Gaines Act, named for a former college swimmer at the University of Kentucky and the ambassador for Independent Women’s Voice, a conservative advocacy group.

The House of Delegates passed a bill to do this last year, House Bill 5243, during the 2024 legislative session, but the bill was never taken up in the state Senate. That bill was known last year as the Women’s Bill of Rights Act, with Gaines visiting the Legislature and meeting with former governor Jim Justice to lobby for its passage.

The bill states that it “shall not be enforced in any manner inconsistent with or in violation of the ruling in Grimm v. Gloucester School Board.” This acknowledges the U.S. Fourth Circuit Court of Appeals ruling in 2020 that a transgender student must be allowed to use the bathroom consistent with their gender identity. However, the bill also states that if the Grimm decision is overturned by the U.S. Supreme Court, the limitations on enforcement imposed by the reference to Grimm “shall be considered repealed.”

“The Grimm case is binding precedent in the Fourth Circuit, which being in the Fourth Circuit applies to us as well,” said Curtis Capehart, the director of policy for the Governor’s Office. “That’s why…it is noted in the opening sections of the bill to make it clear that we know that that is binding precedent and that everyone is required to follow that, and that there is also language there so that in the event that the Fourth Circuit’s precedent in Grimm goes away in the future, whether it would be overruled by the Supreme Court or some other decision come out questioning it, then there would be the restrictions put in place in terms of having to follow Grimm would then go away at the same time that the Grimm decision would.”

House Minority Whip Shawn Fluharty questioned Capehart on the urgent need for the legislation given the remaining legal questions at the federal level and the fact that HB 2006 includes no criminal penalties or enforcement mechanisms for violating its proposed provisions.

“So, you’re waiting for Grimm to be overruled,” said Fluharty, D-Ohio. “The Fourth Circuit takes time, and there’s already been a ruling by the Fourth Circuit. One of the first pieces of legislation coming from the Governor’s Office is dealing with bathrooms. I’m trying to understand the policy considerations here and why this is such an important piece of legislation from the Governor’s Office.”

Del. Evan Hansen, D-Monongalia, questioned House Judiciary Committee Chairman JB Akers, R-Kanawha, regarding the timing of placing HB 2006 on the committee’s agenda. While Monday’s House Judiciary Committee meeting day and time was announced from the floor, an agenda was not made available to the public and committee members until Sunday evening.

Hansen argued this gave the public little time to submit prepared statements regarding HB 2006 or for members to invite subject matter experts to provide testimony.

“We were told when we were debating the House rules a couple weeks ago that we’d be given 24 hours’ notice on agendas,” Hansen said. “Apparently you knew a few days ago if you checked on Mr. Capehart’s availability that this would be on this morning’s agenda, yet we didn’t know about it until last night, Sunday night.”

“I will note for members of the public…that the 24-hour notice is an aspirational rule that we attempt to meet, but in no time in prior legislative history of which I’m aware, my term time in the Legislature previously, was there ever a 24-hour rule for the posting of agendas,” Akers said. “I had the agenda posted last night within or less than about half an hour of confirming that Mr. Capehart would be the witness to appear today. We did our best to have the agenda posted the day before.”

Julie Britton, executive director of the YWCA of Charleston’s Resolve Family Abuse Program, was asked how a domestic violence shelter such as the one she manages would be able to screen clients for their overnight shelter based on whether the person identifies as transgender or not.

“We would have to ask, but that means we would also have to ask every caller on our hotline,” Britton said. “We get approximately 75 calls a month, so if we’re being asked to not provide services to one particular group of individuals, we would have to screen everyone…There are no alternative facilities, and if we are not available, the only other option would be a homeless shelter or the streets.”